Scott E. Mollen

Landlord-Tenant—Law of Nuisance an “Impenetrable Jungle”—Claim for Private Nuisance Against Neighbor Survives Motion To Dismiss—Neighbors' Dogs Allegedly “Barked Incessantly”—Defendants Counter Claimed for Nuisance, Alleging that Plaintiff “Fabricated Complaints or Made Frivolous Complaints” to City Officials To Interfere With the Defendants Use and Enjoyment of Their Property—Repeated Visits by Authorities Based On a Neighbor's Specious Claims Can Establish Nuisance

A plaintiff sued her neighbors, alleging that their two dogs “barked incessantly.” The plaintiff alleged that the dogs' “constant barking at all hours interfered with (plaintiff's) right to quiet use and enjoyment of her property….” The defendants denied the allegations and interposed a counter claim, alleging that the plaintiff “repeatedly called municipal authorities with specious complaints.” The defendants argued that the plaintiff's “continued and prolonged efforts were an attempt to make them move or have their landlord,…, evict them….” The plaintiff moved to dismiss the counter claim for failure to state a cause of action. The plaintiff asserted that the counter claim sounded “like a claim for harassment” and New York does not recognize a claim for harassment.

The defendants claimed that the plaintiff “fabricated complaints or made frivolous complaints to City officials” to impede the defendants “use and quiet enjoyment of their property.”

The court characterized the counter claim as “[s]ounding in private nuisance.” The court explained that “a classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff's occupation and enjoyment of their home physically uncomfortable….” Here, the defendants cited the “intrusion of a bureaucratic horde to investigate the defendants' compliance with municipal regulations—a markedly unusual claim.”

The court observed that “[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'….” The court noted that a “[p]rivate nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property….” The court was unable to “locate a New York precedent where private nuisance was caused by an act unconnected with another's use of property.” However, the court found that “nothing in the…formulation of a nuisance claim requires the action or inaction which causes the disturbance to arise from or be connected to the use of nearby land….”

The court acknowledged that the law permits “neighbors to sic municipal bureaucrats on each other” and the “authorities must dutifully undertake to examine each complaint which corresponds to visits by police and other members of the executive branch of government to a home owner. Each visit causes angst and repeated visits, when those visits are but a contrivance by a neighbor, leaves a home owner in perpetual agitation-which creates nuisance and robs the homeowner of solitude. Such repeated intrusions, when they are unjustified because of a neighbor's specious claims, violated the homeowner's right to the quiet enjoyment of their home—and correspondingly, give rise to a private cause of action for nuisance.”

Here, the defendants alleged that the plaintiff's repeated calls to authorities were an effort by the plaintiff to have the defendants “removed from their home by their landlord.” The court opined that such action constituted a “direct connection to the use of the property” and the counter claim sufficiently alleges a “private nuisance.” However, the counter claim was “short on specifics” and the “question of nuisance will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints and the legitimacy of complaints.” Accordingly, the court held the complaint stated a cause of action for private nuisance and denied the motion to dismiss.

Allen v. Powers, City Court, Albany County, Case No. CV-526-18/CO, decided April 1, 2019, Marcelle, J.

Foreclosures—Appellate Division Addresses the “Evidence Required To Establish Prima Facie Compliance with RPAPL 1304 By Mortgage Holder, and… the Evidence Required To Establish Prima Facie Non-Compliance With RPAPL 1304 by a Mortgagor”

A trial court had granted a summary judgment to a plaintiff in a foreclosure action and denied a cross motion by a defendant for summary judgment dismissing the complaint. The Appellate Division, Second Department (court) took the “opportunity to address the evidence required to establish prima facie compliance with RPAPL 1304 by a mortgage holder, and… the evidence required to establish prima facie noncompliance with RPAPL 1304 by a mortgagor, on a motion for summary judgment in an action to foreclose a mortgage.”

The defendant had obtained a mortgage in 2007. The mortgage had thereafter been assigned. In 2010, the plaintiff lender commenced the subject foreclosure action. The defendant asserted that the plaintiff lacks standing and had failed to comply with RPAPL 1304.

The plaintiff had submitted an affidavit of an officer of a loan servicing company (officer), that alleged that 90-day “pre-foreclosure notices were sent to the defendant on February 4, 2010, pursuant to RPAPL 1304, and that the notices were sent via certified mail and regular first-class mail to the last known address of the defendant and were not returned as undeliverable.” The officer explained that the lender's records relating to mortgage account “consisted of, but were not limited to, the account ledgers and the prior loan services records” and that she had “'personal knowledge of (lender's) records and record making practices.'” She further alleged that it was the “regular practice of (lender) to deposit items to be delivered by regular and certified mail in a postage-paid properly addressed envelope in an official depository under the exclusive care and custody of a United States Post Office.” The plaintiff also “submitted copies of two RPAPL notices, dated February 4, 2010” from the lender's predecessor in interest, addressed to the defendant. Those notices “did not indicate on which date they were mailed or how they were mailed.”

The defendant had cross moved for summary judgment dismissing the complaint, on the grounds that the plaintiff lacked standing and had failed to comply with RPAPL 1304.

The court explained RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower…, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” The statute further specifies “the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL[2]). Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action…. By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, 'which can be established with proof of the requisite mailing,' which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure'”….

The court found that the plaintiff had “failed to establish, prima facie, that it complied with RPAPL 1304.” Although the officer stated in her affidavit “that the RPAPL notices were mailed by certified and regular first-class mail, and attached copies of those notices, plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. There is no copy of any U.S. Post Office document indicating that the notice was sent by registered or certified mail as required by the statute.”

Although the officer “attested that she was in receipt of the prior loan servicer's records, that she had personal knowledge of the business practices for mailing of notices by (plaintiff's predecessor), and that the 90-day notice was sent in compliance with RPAPL 1304, she did not attest to knowledge of the mailing practices of (the lender) that allegedly sent the notices to the defendant.” The court held that since “[p]laintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304….”

Accordingly, the court held that the trial court should have denied the plaintiff's motion for summary judgment. It also held that although it did not have to reach the issue of standing based on its determination, the plaintiff had “also failed to establish its prima facie entitlement to judgment as a matter of law by failing to submit sufficient evidence that it had standing to commence the action….”

Additionally, the court held that the defendant's cross-motion for summary judgment on the grounds that the plaintiff lacks standing, should be denied. The defendant failed to meet her burden since she offered “no evidence relating to standing on her motion and thus failed to eliminate all triable issues of fact regarding the plaintiff's status as the holder of the note on the date the action was commenced….” It also denied the defendant's cross-motion for summary judgment based on the plaintiff's alleged failure to comply with RPAPL 1304. It viewed that issue as “more problematic.”

The court explained that over the last eight years, “a line of cases had developed in the Second… Department holding that, in an action to foreclose a mortgage, a defendant moving for summary judgment dismissing their complaint can establish, prima facie, that the plaintiff bank failed to comply with RPAPL 1304 by merely denying receipt of the RPAPL 1304 notice.”

The court observed that notwithstanding such prior decisions, “there is much case law standing for the proposition that a mere denial of receipt is insufficient to assume 'win the day' in motion practice.” It noted that cases involving “service of process, it is well established that a mere denial of service is insufficient to rebut a presumption of proper service established by an affidavit of service…. Similarly, a mere denial of receipt is insufficient to rebut a presumption of mailing where there is documentary proof of the mailing….” Moreover, the Appellate Division, Second Department, “has held in the RPAPL 1304 context that a mere denial of receipt is insufficient to raise a triable issue of fact to rebut a plaintiff's prima facie evidence of mailing….”

The court further noted that although the foregoing authorities “apply where the server or the mailer has provided prima facie evidence of service or mailing, there is little authority for the proposition that a litigant can satisfy his or her prima facie burden on a motion for summary judgment dismissing the complaint by simply stating that a document was not received and, therefore, the other party did not perform an act, despite averments that the act was performed. Even in the face of a plaintiff's failure to establish, prima facie, that a notice was properly mailed on a motion of summary judgment on the complaint, this court has held that defendant still has to meet its burden on a cross-motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled….”

In the subject case, the defendant had “provided no particulars supporting her claim that (a prior lender) never mailed the RPAPL 1304 notice to her last known address.” Rather, “[t]he defendant only stated that she never received the notice.” The defendant had not confirmed that she “still lived at the address shown on the notice on the date it was purportedly mailed, that she had been receiving other mail at that address, and that she was never contacted by the United States Post Office about mail for which she was required to sign.”

The court held that a “simple denial of receipt, without more, is insufficient to establish prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304.” It also stated that to the extent that its “prior decisions are to the contrary, they should no longer be followed.”

The court also held that the plaintiff's submissions were not “sufficient to establish the defendant's prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with RPAPL 1304.” It noted that “[t]here is ample case law providing that a party cannot succeed on a motion for summary judgment by simply pointing out gaps in the opposing party's case….” Although the plaintiff's submissions were “insufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law,” its submissions “tended to refute the defendant's mere statement that the 'plaintiff has… failed to prove its strict compliance with RPAPL 1304 with regard to the mailing of the required 90-day notice which I never received.'”

Accordingly, the court held that the defendant failed to “eliminate all triable issues of fact as to whether the RPAPL 1304 notice was mailed or received…” and affirmed the trial court's denial of the defendant's cross-motion for summary judgment.

Citibank N.A. v. Conti-Scheurer, Appellate Division, Second Dept., Case No. 2016-02042, decided April 17, 2019, Balkin, JP, Austin, Lasalle, Iannacci, JJ. Opinion by Iannacci, J. Balkin, J.P., Austin and Lasalle, JJ., concur.

Scott E. Mollen is a partner at Herrick, Feinstein.