Scott E. Mollen

Landlord-Tenant—Condominiums—Landlord and Tenant Granted Preliminary Injunction Against an Offending Downstairs Neighbor Based On Recurring Objectionable Conduct—Court Had Power To Grant Equitable Relief—Such Relief Was Different From a Criminal Protective Order

A plaintiff condominium owner (landlord) and its plaintiff tenant (tenant) moved for a preliminary injunction enjoining a downstairs defendant neighbor (neighbor) from, inter alia, contacting the tenant or any occupant of the plaintiff's apartment (18H), appearing at the front door of 18H, ringing the doorbell of 18H, placing material under the door of 18H, "shouting, screaming, yelling, or engaging in physical or verbal threats," engaging in any "assault, abuse, harassment, or intimidation" of the tenant, going onto the 18^th floor of the subject apartment building, interfering with the "comforts or conveniences" of the building or the tenant and "creating or permitting any disturbing noises or activities, including the creation of noxious odors" that interfere with the building or the tenant's use and enjoyment of 18H.

The neighbor moved for an order enjoining the plaintiffs from "harassing, menacing, threatening, or stalking" the neighbor. The court granted the plaintiffs' motion for injunctive relief and denied the neighbor's motion.

The plaintiffs asserted that the neighbor had engaged in "escalating harassment" of the tenant. The neighbor had also previously "tormented" prior tenants who refused to renew their lease because of the neighbor's "harassment."

The neighbor had allegedly made "frequent false complaints of noise emanating from 18H," even when 18H was unoccupied. The neighbor allegedly used her broom to bang on the ceiling to complain of noise, "during times when the tenants were not expected to be quiet, i.e. between 8 a.m. and 11 p.m." The neighbor allegedly made her own noise by "beating drums and chanting, and burning odors would waft from her apartment up to 18H."

The neighbor's conduct was attested to by prior tenants of 18H. After the prior tenants vacated 18H, the landlord installed additional soundproofing to address the neighbor's complaints, at a cost of more than $4,000.00. The neighbor allegedly complained about noise during such renovation work and had delayed the landlord's renovation work.

The landlord stated that to accommodate the neighbor, it had selected the current tenant for 18H, noting that such tenant is a "quiet, single, elderly lady who lived in the (building) since 1997…." She suffers from "multiple sclerosis" and alleged that stress from the neighbor's relentless harassment has exacerbated her symptoms.

In February 2018, the neighbor had placed a note under the tenant's door stating that if the tenant continued to harass her, she would make it her business to make the plaintiff tenant's "life as miserable as you try to make mine…." The neighbor had slipped additional notes under the tenant's door saying such things as "sweet dreams fat piggy" with "angry face emoji stickers" and a "dead face emoji." A note was allegedly covered with "garlic powder." The tenant further asserted that she found "some strange white powder on her door knob" and her doorbell had been "defaced with a black substance." The tenant had taken cellphone pictures when the neighbor appeared at the tenant's door and "allegedly threw garlic powder all over her and thrust an orange in her face…." The landlord had determined that the neighbor's complaints appeared to lack merit.

The tenant also claimed that the neighbor "smokes marijuana or burns something she cannot identify, and the noxious fumes invade (18H), making her sick." Additionally, the tenant claimed that she's afraid of the neighbor and "fears leaving her apartment lest she run into her in the building or on the street and is afraid that (neighbor) will throw something at her more dangerous than garlic powder and inflict serious injury on her…."

The landlord and the tenant asserted claims for nuisance, the tenant asserted a claim for intentional infliction of emotional distress, the landlord also asserted a claim for tortious interference with prospective business relations and for violation of the condominium bylaws. Both plaintiffs sought injunctive relief.

The neighbor claimed that the plaintiffs' allegations are misleading and out of context. She claimed that the tenant had engaged in an "extended harassment campaign against her which has exacerbated her health issues." The neighbor alleged that the tenant "regularly scrapes chairs or furniture on the floor and bangs repeatedly on her floor." However, the neighbor admitted that she had sent numerous complaining emails to the landlord about the tenant and that she had called the police and had filed a police report. She also admitted that she had knocked on the tenant's door several times. She claimed that she did so because the plaintiff tenant was "banging on her floor with some object in order to disturb (neighbor)." She denied that she threw garlic powder at the tenant, but admitted placing notes under the tenant's door with the "name-calling and threats…." She further admitted that it was partially true that she rang the tenant's doorbell "incessantly" and yelled.

The court found that the plaintiffs had demonstrated "a pattern of recurring objectionable conduct, and that (neighbor's) interference was substantial." The court cited affidavits of the tenant, the prior tenants, the resident property managers and another condominium unit owner who lived in the building.

The court found that the plaintiffs had shown a likelihood of success by showing that the neighbor had "repeatedly and significantly disturbed" the tenant's right to use and enjoy 18H by, inter alia, confronting the tenant at her apartment, "throwing garlic powder at her, banging on her door, yelling and shouting at her not only during the day, but late at night, insisting that the front desk knock on (tenant's) door, waking her up in the middle of the night; calling the police; and repeatedly attaching on or slipping under her door threatening, insulting, and degrading notes." The court further found that the neighbor's actions were "intentional," that the plaintiffs established the elements of the "nuisance claim" and that such interference was "unreasonable and affected the (tenant's) and (the landlord's) right to use and enjoy the apartment."

The court held that the neighbor's counter-claim allegations were not credible, including the assertion that the tenant had dropped "bowling balls or other heavy objects," given that the tenant is "elderly, has MS, and walks with a cane." A "purported audio recording of noises coming from" the tenant's apartment on one occasion and a video of the tenant taking cellphone photos of the neighbor in the building's lobby was held to be inadmissible since they were "unauthenticated," lacked any foundation and were "provided only with an apparent link to a Dropbox account." The court noted that it was unclear how the tenant's taking pictures of the neighbor would establish the neighbor's counterclaims.

The court also found that the plaintiffs had demonstrated irreparable injury absent injunctive relief. The court emphasized that the tenant was "elderly and has MS" and is "afraid to leave her apartment, and fears that with the clear escalation of the conduct, the (neighbor) may throw something more dangerous than garlic powder on her."

Moreover, the court held that the balance of equities clearly tipped in favor of granting relief to the plaintiffs. After citing the neighbor's improper conduct, the court opined that there was no "apparent harm" to the neighbor by barring her from contacting the tenant or appearing at her door or barring her from "shouting or screaming at her, or engaging in verbal or written threats or intimidating her."

Additionally, the court rejected the neighbor's argument that the court lacked jurisdiction to issue a preliminary injunction on the grounds that the plaintiffs were really seeking a "criminal protective order." The court reasoned that its authority to issue injunctive relief "falls within the equity jurisdiction" of the court.

Thus, the court granted the plaintiffs' motion for a preliminary injunction and denied the neighbor's motion for injunctive relief.

25 CPW City Views LLC v. Cohen, Supreme Court, New York Co., Case No. 152876/2018, decided Jan. 22, 2020, D'Auguste, J.

Landlord-Tenant—Court Awards Rent Abatement Based on Impact of Construction – Lack of Cooking Gas, Leaks and Presence of Vermin—Landlord had Filed Dep't of Buildings Applications Which Misstated that the Building Was Vacant—Abatement Increased Based on "Aggravating Factor" (False Information on DOB Application)

A landlord had commenced a proceeding against its tenants, seeking money judgments and possession of the subject apartments, on the grounds of nonpayment of rent. The tenants asserted affirmative defenses and counterclaims.

A tenant testified that there was scaffolding outside the windows of the apartment from August 2012 through May 2013, that scaffolding "deprived the subject premises of light; that she could not use her air conditioner in the summer because of the scaffolding; and that contractors walked on the scaffolding right outside her window starting at 8 a.m., depriving her of privacy." Another tenant testified as to noise from jackhammering and as to construction in the building in which the apartment is located. The tenants cited renovation work related to three apartments on the same floor as their apartment and on the floor above it.

The tenants claimed that the construction caused a "dust condition throughout the Building, with dust caked onto the common area floors and the elevators that found its way into the subject premises; that the construction caused debris to land on (tenant's) air conditioner; that (tenant) was concerned that dust would enter the premises if he turned the conditioning on." Tenants further testified as to renovation work that went on in other apartments in the building, that certain windows were not covered, and scaffolding had remained up for three or four years. A tenant testified as to "horrendously loud construction noise," as well as dust. The tenants introduced photographs showing the scaffolding and dust within and without the subject apartments.

They also introduced evidence of the landlord's applications for permits, which had been filed with the NYC Dept. of Buildings (DOB) for "construction permits, construction of a sidewalk shed, the installation of gas piping throughout the Building." Several of those applications stated that "no tenants are in occupancy of the Building."

A landlord contractor testified that his practice was to "use protective measures" to contain dust in the apartment he renovates and that he does "constant cleaning during work in occupied buildings." He claimed that he had a "cleaning crew consisting of five people who mop and clean hallways, ledgers, and railings, and throw out garbage" and that noise is "limited to scope of work, although jackhammers can make a problem." The contractor testified that he can't do demolition "without making noise" and that he limits his work hours from between 9 a.m. and 5 p.m., even though the permit permitted earlier work. He also stated that electrical work causes noise and there had been a tenant protection plan in place and he had complied with that plan. The contractor lacked a "specific memory of being in a specific apartment on a specific date at a specific time."

Citing the Warranty of Habitability (Real Property Law § 235-b(1)), the court explained that the measure of damages is the "difference between the rent reserved under the lease and the value of the premises during the period of the breach." The court found that the reduction in light and air diminished the habitability of the premises by seven percent during the subject period.

The court acknowledged that "construction is a reality of New York City living," but noted that construction can have a "negative effect" on the "habitability of an apartment." The court stated that "construction and renovation work that incurs 'noise, vibrations, and dust caused by jackhammering and other daytime construction activities can diminish the habitability of an apartment by 25 percent." The court found however, that this case involved an "aggravating factor," i.e. an applicant for construction permit must certify whether anyone lives in the building being altered, constructed or demolished. Here, several applications for construction permits "incorrectly represented to DOB that the Building was not occupied during construction, thus easing the way for Petitioner to engage in a scale of work disruptive to the habitability of the subject premises, particularly in terms of noise, dust, and disruption of services amply documented by the extensive record adduced at trial." Therefore, the court held that the "effects of the construction diminished the habitability of the premises by 40 percent" for the subject period of time.

The court rejected the tenants' claim that the landlord's use of one of two elevators for construction warranted a rent abatement. The building had two elevators and the tenants lived on the second floor. Since the apartments lacked cooking gas from April through October 2016, the court ordered an additional rent abatement of 15 percent. However, the tenants' evidence as to lack of heat and water pressure and excessive heat was insufficient to justify a rent abatement.

The NYS Div. Housing and Community Renewal had previously denied a rent reduction application based on an allegedly defective intercom. Therefore, the tenants' claim for an abatement based on the intercom was barred by the doctrine of collateral estoppel.

Based on evidence of a leak and leak damage, the court awarded an additional rent abatement of 12 percent. The court also awarded an 8 percent rent abatement based on presence of vermin. The court rejected however, the tenants' request for abatement based on to puddles of water in the basement. Such complaint did not have "a strong enough connection to the use of the subject premises to warrant a rent abatement."

West 30th Realty LLC v. Castaldo, Civil Court, New York Co., Case No. 58883/2014, decided Jan. 23, 2020, Stoller, J.

Landlord-Tenant—Court Denied NYC Dep't of Buildings Motion To Dismiss a Proceeding Commenced by Tenants—The Housing Part Is Not Authorized To Direct the DOB To Issue and Collect Fines, Issue Stop Work Orders, and Audit or Revoke Permits

The NYC Dept. of Buildings (DOB) moved to dismiss the subject proceeding, as to the DOB, on the grounds that the tenant petitioners failed to state a cause of action. The DOB also asked the court to deny the petitioners' request for an order "compelling DOB to register outstanding conditions not yet registered as violations, issue and collect fines, issue stop work orders, and audit or revoke permits." The court denied the DOB's motion to dismiss, but denied the petitioners' request for an order compelling the DOB to take the requested affirmative actions.

The tenants had commenced the underlying Housing Part (HP) proceeding. They moved for an order "to correct, harassment finding and temporary restraining order." The petitioners "sought a finding that conditions described in their petition constitute construction and public safety violations under the purview of DOB and sought DOB to register such as violations, collect fines, issue stop work orders, and audit or revoke all permits granted to respondent-owners."

The court explained that although the DOB "is correct in so far as petitioners fail to allege any facts against DOB, following existing line of case law and statutory authority vested upon HP," the court denied DOB's motion to dismiss. The Civil Court Act (CCA) "explicitly gives HP jurisdiction to grant injunctive relief to enforce 'state and local laws for the establishment and maintenance of housing standards, including, but not limited to the Multiple Dwelling Law…, the (NYC) … Housing Maintenance Code…, the Building Code, and Health Code."

Here, the petitioners alleged that the owners had obtained permits from DOB "with false information." The petitioners alleged that the owners had sent a letter to the tenants advising them that they have to "shut off gas on a date certain due to DOB regulations." The court took judicial notice of several open Environmental Control Board violations on DOB's website.

The court then stated that "[s]ince HP has jurisdiction to enforce Building Code, an inquiry as to whether lack of gas is a violation of housing standard must be made at trial." The court observed that there were open ECB violations, "including electrical, construction and plumbing," and those violations "may impact health and safety of the occupants." Thus, the court found that the DOB's "participation in the proceeding is essential" and DOB's motion to dismiss was denied.

However, the court agreed with the DOB that statutory authority did not vest HP with the power to "compel DOB" to take the actions requested by the tenants, i.e. to compel DOB to "find outstanding conditions as violations, issue and collect fines, issue stop work orders, and audit or revoke permits." The court explained that although HP "has the power to order correction of violations that impact health and safety of the occupants including Building Code violations, HP may not direct DOB to issue and collect fines, issue stop work orders, and audit or revoke permits." Accordingly, the DOB's motion to dismiss such relief claims in the petition was granted.

Robertson v. Jones, Civil Court, Kings Co., Case No. 001659/19, decided Jan. 28, 2020, Smith, J.