DECISION/ORDER Petitioner commenced this licensee holdover proceeding to gain possession of the premises located at 250 East 39th Street, Apartment 10D, New York, New York 10016 (premises”). The premises are subject to the Rent Stabilization Law of 1969, as amended. Respondent entered into possession of the premises pursuant to a lease dated September 15, 1976 and most recently renewed for one year by Renewal Form dated May 2, 2018. The petition alleges that respondent’s lease expired for the reasons set forth in the Seven (7) Day Notice of Termination, dated February 1, 2018 (“Notice”) and served pursuant to Rent Stabilization Code (“RSC”) §2524.2.The Notice alleged, a pattern of nuisance conduct by respondent, which was allegedly admitted to in a signed letter dated October 3, 2017 (“letter”). In the letter, aside from allegedly acknowledging her behavior, respondent agreed to refrain from same. The conduct included in the letter alleged: respondent did not take care of the premises, there were concealed leaks at the premises; she harassed tenants in the building; she tool trash bags from the basement for personal use; she affixed a mouse trap, with a live mouse, to the wall near elevator; she placed trash in hallways; she publically removed clothes to allegedly prevent mites from infesting the premises; she used the premises to sell items; she left items in lobby for buyers and she harassed building staff and management. The Notice required respondent to vacate the premises by February 20, 2018.The proceeding was initially returnable in Part H on March 8, 2018. Subsequently respondent appeared, by counsel, and interposed a Verified Answer with Affirmative Defenses and Counterclaims dated April 10, 2018 “(“Answer”). The Answer alleged that the allegations in the Notice were not sufficient to constitute a nuisance and respondent is entitled to a post-trial opportunity to cure. Respondent also put in a counterclaim for legal fees.Prior to trial, respondent served plaintiff with a Demand for a Verified Bill of Particulars dated April 10, 2018 (“Demand”). In response to the Demand, petitioner alleged as follows:1. Respondent banged with a broom stick or other large object on ceiling on February 1, 2018 and on January 27, 2018 petitioner received notice from a tenant respondent was banging on ceiling2. That respondent confronted Derek Barocas of Apt 11 A3. That respondent was notified as to a water leak and denied it was from her apartment and sent a “courtesy note” to see if 10E was the source of the leak4. Respondent concealed leak on October 29, 20135. Kucum Lele in Apartment 10E was the elderly tenant who was caused great stress when respondent left him the “courtesy note”6. Respondent was seen taking trash from the basement for personal use on September 21, 20117. Respondent “admonished” tenants in 11D for too much noise on June 18, 2013 at approximately 6:00 pm8. Respondent affixed the glue trap, with live mouse, outside elevator on July 12, 20119. Respondent placed trash in a public hall on December 31, 2012 and respondent acknowledged the incident.10. Respondent took off her clothes in a public space and exposed the building to mites on June 5, 201511. Respondent left items in the lobby and harassed the doorman on August 29, 2017 which she acknowledged in an email and prior agreement.12. Respondent has repeatedly harassed and admonished management and building staff giving the finger on a daily basis on the way out; sending emails about the super on December 24, 2011 January 15, 2011; April 15, 2011; December 31, 2013; February 3, 2013, March 11, 2013, April 23, 2013, May 11, 2013, June 27, 2013, July 11, 2013, August 11, 2013, October 30, 2013, November 19, 2013, February 2, 2014, February 24, 2014, June 3, 2014, June 25, 2014, July 4, 2014, September 5, 2014, September 19, 2014, October 2, 2014, October 6, 2014, June 5, 2015, June 7, 2014, June 22, 2014, July 15, 2015, October 28, 2015, November 19, 2015, June 28, 2016, July 8m 2016, December 22, 2016, January 28, 2017, March 1, 2017, August 28, 2017 and August 31, 2017.13. Not Answered.Petitioner also served respondent with a Notice to Admit dated May 11, 2018. In relevant part, the Notice to Admit stated that respondent received the Notice dated February 1, 2018 and attached the prior Notice of Termination dated September 11, 2017; respondent separately received the Notice of Termination dated September 11, 2017; respondent drafted, signed and sent a letter to Jonathan Elyachar dated September 26, 2017 and admitted taking a garbage bag from the basement; respondent signed the letter which acknowledged each instance in the Notice of Termination dated September 11, 2017; on January 26, 2018, respondent sent a note to Derek Borokus who lives in Apt 11D, directly above respondent and banged on her ceiling due to noise; respondent has knocked on the door of 11D to confront Derek Borokus about noise; respondent has on multiple occasions extended her middle finger to building staff; and respondent left personal property in the lobby or common area for inspection by a buyer. After discovery was complete, a trial was held on November 5, 2018 and March 5, 2019.Petitioner’s CasePetitioner submitted the following documents: certified Deed (Pl); Multiple Dwelling Registration (P2); Lease (P3); rent ledger (P4); Letter Agreement dated October 2, 2017 (P5); Letter dated January 26 from respondent to a neighbor (P6). The Court took judicial notice of the Notice of Petition and Petition, both of the Termination notices that were served upon respondent as well as respondent’s affirmative defenses.Petitioner’s first witness was Eli Cecil, petitioner’s manager. Mr. Cecil testified that in the Letter Agreement (“letter”) (P5), respondent acknowledged the incidents contained in the Notice of Termination dated September 11, 2017. Mr. Cecil testified that the letter was prepared by the previous vice president of petitioner. Mr. Cecil also testified that despite the letter, respondent continued her behavior. Mr. Cecil testified that petitioner was given a handwritten note dated Fri. Jan. 26, at 8pm (P6), from respondent to her upstairs neighbor, in which respondent complained about heavy stomping, knocking, scraping the floor with the chair and hammering, which she alleged caused her stress and headaches. In the note (P6), respondent requested to talk to her upstairs neighbor in person to reach a solution.Petitioner’s second witness was Jon Dancu, the superintendent at the building. Mr. Dancu alleged that he has lived in the building for 25 years, he takes care of the building and he oversees the day to day operations of the building. Mr. Dancu testified that respondent has lived in the building as long as he has and that respondent makes people uncomfortable. Mr. Dancu testified that respondent attacked him, made faces at him and cursed him on many occasions. Mr. Dancu also testified that respondent has taken pictures of him, called the police and alleging he threatened her and that respondent curses at the doormen and grooms her dog in the laundry room.Petitioner’s third witness was Jose Navarro, the doorman. Mr. Navarro has been the doorman for more than fifteen years but has resided at the building more than eighteen years. Mr. Navarro knows respondent as long as he has lived at the building and testified that they do not have a “nice relationship” because respondent is “always looking for trouble”. Mr. Navarro testified that respondent is very demanding, always wants to talk to the super and calls him “stupid”, “idiot” and “asshole”. Mr. Navarro testified that respondent made him uncomfortable by always looking around and making faces. Mr. Navarro testified that respondent made him feel bad however but he is always nice because petitioner told him to always be nice. Mr. Navarro testified that respondent also talks bad to his family and she took a picture of his children. When Mr. Navarro asked respondent why she took a picture she responded “blah” “blah” “blah”. On cross examination, Mr. Navarro testified that respondent was “ok” now.Respondent’s CaseRespondent, age 69, testified on her own behalf. Respondent testified that she has lived at the building for a long time and that she had been brought her to court two times before this proceeding. Respondent alleged that she had a strained relationship with petitioner even though she planted the trees, made suggestions to improve the building and kept the premises in good condition. Respondent entered into evidence photographs of the premises which are a studio apartment (RA1-4). The photographs reflect the premiss as well maintained, neat and orderly. Despite the photographs, respondent alleged there were constant leaks at the premises and in 2013 she put a bucket under the kitchen but that leak became too large. Respondent alleged that she only signed the letter (P5) which, acknowledged her behavior and the incidents, because she wanted petitioner “off her back”. Respondent acknowledged that she wrote Derek Barocas a note (P6) but stated the note was to try and resolve the noise issues. Respondent denied the alleged banging. Respondent alleged that she took a large trash bag from the compact room because she needed one and there was no one to ask. Respondent admitted she affixed the mouse trap with a live mouse to the wall after she had a rodent problem and the landlord only offered her traps which did not solve the problem. Respondent alleged she spent $150.00 to plug up the holes and never had another mouse. Respondent alleged she took her clothes off in the stairwell and someone took them. Respondent acknowledged she left a box in the lobby to be picked up by a third party.Petitioner’s Rebuttal CasePetitioner called Richard Katz as its rebuttal witness. Mr. Katz was an officer and employee of the corporation from 2003-2018. Mr. Katz testified he is now a retired. Mr. Katz testified that when he was employed by petitioner his job was to respond to complaints. As part of his employment with petitioner, Mr. Katz testified that he attended Small Claims Court. Mr. Katz testified that petitioner was successful in a small claims case against respondent and as a result, respondent insulted him and accused him of marrying his wife for money. Mr. Katz testified that he met with respondent in the premises and responded to her emails but they did not have a friendly relationship. Mr. Katz testified that he prepared a document to terminate respondent’s tenancy however respondent did not want to litigate, she wanted to settle so he prepared the letter (P5) in which respondent agreed not to harass other tenants. However, even after the letter, respondent banged on the ceiling and knocked on a neighbors door. Through the testimony of Mr. Katz, it was clear that no pets were allowed in the laundry room. On cross examination Mr. Katz admitted that he had no personal knowledge of the contents of the video surveillance offered as (P7).During closing arguments, respondent argued that petitioner had offered no proof of threats, that the surveillance video was offered with no personal knowledge and that the overall conduct did not rise to the level of a nuisance and cited Domen Holding Co v. Aronovich, 1 NY3d 117, 123-134 (2003) and Tsangarinos v. Attaway, 43 Misc3d 142[A], 2014 Slip. Op 50848[U](AT 1st Dept). Respondent argued to the Court that respondent resided at the premises for 42.5 years. Petitioner argued that respondent admitted her behavior and promised to discontinue the behavior but failed to do so.Discussion of LawUnder Rent Stabilization Code §2524.3(b), grounds for an eviction will be found where it is established that the tenant has committed or permitted a nuisance to occur. Courts have defined nuisance as “a recurring or continuing pattern of objectionable conduct by a tenant that threatens the comfort and safety of others in the building. Roxborough Apts. Corp. v. Kalish, 22 Misc3d 103[a], 880 NYS2d 8776 (At 1st Dept. 2009). To constitute a nuisance, the tenant’s use of the property must interfere with a person’s interest in the use and enjoyment of the land, See Domen Holding, supra. and must threaten the health, safety or right to peaceful enjoyment by other residents. See Roxborough, supra. Not every single annoyance will constitute a nuisance, rather a nuisance imports a continuous invasion of rights. See Domen, supra quoting Frank v. Park Summit Realty Corp., 174 AD2d 35. Giga Greenpoint Realty v. Mounier, 61 Misc3d 135(A), 2018 NY Slip Op. 51510(U) (2018). In order to establish a behavior that is egregious enough to constitute a nuisance, the court must weigh the quantitative and qualitative aspects under the specific set of circumstances. 772 East 168th Street LLC v. Holmes and NYCHA, 61 Misc3d 1206(A), NY Slip Op. 51381(U)(2018). Extremely violent behavior, even if not continuous, may even constitute a nuisance, 160 W. 118th St. Corp. V. Gray, 7 Misc3d 1016(A)(2004), and isolated incidents of a lesser degree, where there is no continuing pattern, do not constitute a nuisance. See Tsangarinos, supra. In Tsangarinos, the court held that two altercations over five years were not shown to have substantially threatened the comfort and safety of the others at the building to constitute a nuisance.ConclusionsThis Court finds that petitioner failed to establish that respondent’s conduct rose to the level of actionable nuisance which would cause her forfeit her 42.5 year tenancy at the premises. This Court is guided by the clear public policy of keeping rent stabilized tenants in their homes whenever possible. The Court also considers the age of the respondent, longevity of the tenancy and the fact that petitioner’s witnesses testimony that respondent has not recently engaged in the behavior. 2013 Amsterdam Avenue Housing Association, L.P. v. King, WL 1322418 (App. Term 1st Dept 2019). The testimonial and documentary evidence adduced at trial demonstrated a mutually acrimonious relationship between the parties. Although petitioner produced the letter (P5), signed by respondent, this Court does not believe such an out of court document signed by respondent without benefit of counsel can be relied upon. Petitioner failed to prove that respondent did not take care of the premises or concealed a leak or left a note for her neighbor. Petitioner failed to prove that respondent’s isolated act of taking a trash bag from the basement for personal use interfered with the health, safety or enjoyment of the premises of other residents. Petitioner failed to prove that respondent admonished the tenants of apartment 11D for wearing shoes and banged on the ceiling and only proved respondent left the neighbor a note which asked to resolve the issue face to face (P6). Petitioner failed to prove that respondent placed garbage in the hallway or left items in the lobby for inspection by a buyer. Petitioner also failed to prove how respondent’s numerous complaints about the superintendent threatened the health and safety of other residents at the building in order to constitute a nuisance.Respondent’s isolated incident of gluing the mousetrap to the wall, albeit distasteful, was not extremely violent in order to consider the isolated incident a nuisance under 160 W. 118th St. Corp. V. Gray, supra. Also respondent’s indecent exposure, while again distasteful, was a non-violent isolated incident which did not rise to the level of nuisance.It was abundantly clear through the testimony of petitioner’s witnesses and respondent that there was a mutual disdain. While this Court finds respondent may be a difficult and demanding tenant and has undoubtedly engaged in behavior that is not appealing, in weighing the quantitative and qualitative factors under the circumstances, see 772 East 168th Street LLC v. Holmes and NYCHA, supra., the Court does not believe that given respondent’s 42.5 year tenancy and the relatively few undesirable instances over the course of forty two years in giving staff the middle finger, making faces, being demanding or difficult rise to the level of a nuisance.Accordingly, the petition is dismissed. This constitutes the Decision and Order of this Court. All trial exhibits must be picked up in Room 225, window 9, within 30 days of this Decision/Order. Any exhibits which are not timely retrieved may be destroyed.Dated: July 12, 2019New York, New York
