DECISION/ORDER Procedural and Factual History Petitioner commenced this nuisance holdover proceeding seeking possession of 28 Bond Street, Unit #3, New York, New York 10012 (“premises”). The premises are not subject to the Rent Stabilization Law of 1969, as amended, or the Rent Control Law. The premises are rent regulated pursuant to the Multiple Dwelling Law (“MDL”), Article 7-C. The Notice of Petition and Petition dated December 27, 2018, allege that the term for which the premises were rented expired on November 30, 2018. According to the Thirty Day Notice of Termination (“Notice”), dated October 16, 2018 and annexed to the Petition, respondent committed or permitted a nuisance at the premises or maliciously or by reason of gross negligence substantially damaged the building. The Notice alleged that respondent’s conduct substantially interfered with the comfort and safety of petitioner or other occupants of the building and/or adjacent structures due to her feeding pigeons from her fire escape in front of the building and/or windowsill which caused bird feed and fecal matter to fall from the fire escape onto the street in front of the building and onto the customers of OAK, a retain clothing store occupying the first floor of the building. Petitioner also observed potted plants, a bird feeder and feeding pigeons on the windowsill. The Notice further alleged that other residents had complained of the presence of bird feed and fecal matter which presents a health hazard and as a result of respondent’s feeding the birds, the mortar at the building had been damaged. a Prior Proceeding The Notice also stated that by Summons and Complaint, dated June 14, 2017, petitioner commenced an action in New York State Supreme Court which asserted various causes of action including a cause of action for nuisance. Subsequently, on June 15, 2017, petitioner moved for a Preliminary Injunction together with a Temporary Restraining Order (“TRO”) to enjoin respondent from feeding the birds from her fire escape, windowsill and in front and back of the building. The TRO was granted on June 17, 2017 which restrained respondent from feeding birds from the fire escape, the windowsill, in front of or in back of the building and/or in front of Oak’s store. Respondent was also required to remove all items, except for planters, from her window ledge and all items from her fire escape. According to the Notice, respondent violated the terms of the TRO and began feeding birds again. As a result of respondent’s actions, the Notice alleged that the setback roof in the back was covered in feces and bird feed which blocked the drain of the roof and damaged the building. On October 12, 2017, petitioner filed an Order to Show Cause in Supreme Court which sought to punish respondent for contempt of Court for violating the TRO. At that time, the parties entered into a Stipulation of Settlement, dated November 1, 2018 in which respondent agreed not the violate the TRO for six months. In the event respondent complied with the TRO, the action would be dismissed with prejudice. Although the Notice alleged that during the six month period respondent continued to feed the birds, petitioner did not bring the action back to court. At the conclusion of the six month period, petitioner obtained video which demonstrated respondent fed the birds and the roof in the back was again covered in feces, feathers and bird seed which blocked the drain and caused flooding and damage to the building. Lastly, the Notice alleged that other tenants at the building complained and the bird seed, the dead bird and fecal matter all presented a health hazard to the other tenants in the building and passersby. It was alleged that respondent continued her behavior despite requests, by petitioner, to stop in or about August and September, 2018 b. Instant Proceeding The proceeding initially appeared in Part D on January 10, 2019. Respondent, by counsel, interposed a Verified Answer with Affirmative Defenses and Counterclaim, dated February 4, 2019. In her Answer, respondent alleged, inter alia: that the allegations in the Notice were insufficient to constitute a nuisance; that petitioner failed to state a cause of action; that the allegations in the Notice were vague and conclusory; that respondent had not engaged in behavior sufficient to constitute a nuisance nor had she maliciously, or by reason of gross negligence, substantially damaged the building; that she was entitled to a post-trial opportunity to cure any conditions which constituted a nuisance pursuant to RPAPL §753(4); that the subject multiple dwelling has not been legalized in compliance with MDL Article 7-C in that there was no certificate of occupancy and petitioner could not recover use and occupancy; that petitioner previously commenced a proceeding on the same allegations in New York County Supreme Court, Index Number 155425/17, that petitioner did not prove respondent violated the probationary period and petitioner is precluded by res judicata from reusing the allegations presented in the Supreme Court action which was dismissed with prejudice. Respondent also counterclaimed for attorneys’ fees pursuant to Real Property Law (“RPL”) §234. On June 6, 2019, the proceeding was transferred to Part R for trial. A Pre-Trial Conference was held on June 10, 2019. A trial commenced on November 29, 2019 and continued on January 9, 2020, January 10, 2020, February 10, 2020 and February 23, 2021. At the conclusion of trial, both sides submitted Post-Trial Memorandum of Law. Petitioner’s Case Petitioner offered the following documents on its prima facie case: current deed (P1); prior deed (P2); Stipulation between the parties to amend the caption of the proceeding (P3); Interim Multiple Dwelling (“ID”) registration from 2018 (P4); IMD registration from 2019 (P5); NYC Loft Change of Ownership from Saada Roberts to GSKP LLC dated October 25, 2019 (P6). The Court also took judicial notice of the prior Supreme Court action between the parties, Index Number 155425/17. Petitioner’s first witness, Robert Powitz, was qualified as an expert. Dr. Powitz is a registered sanitarian who has a certificate in Wildlife Fisheries and Forest Conservation (1965), an A.A.S. in Agricultural Production (1962), a B.S.A. in Agriculture (1964), an M.P.H in Public Health (1974) and a PH.D. in Environmental Health and Epidemiology (1978) (P18). According to Dr. Powitz, he is an expert sanitarian as well as an expert in pigeons. Dr. Powitz testified that he visited the building once, long after respondent had stopped feeding the pigeons, and that he reviewed dozens of videos and photographs. Based upon Dr. Powitz’s observations, he concluded that the conditions seen in the videos and photographs were “typical of a feeding area…typical of a flock.” Dr. Powitz testified that he saw roosting sites at the building although, as stated above, there were no active nests when he visited the building. According to Dr. Powitz, pigeons are creatures of habit and if there is no food, they usually stay around for a week or two and then leave. Dr. Powitz described pigeons as “opportunists” and stated that when one pigeon finds a food source, other pigeons will come. Furthermore, Dr. Powitz stated that when pigeons are present, there is a build-up of debris, which when dry, can be airborne and carry fungal and/or a bacterial disease. Dr. Powitz also stated that pigeon feathers are notorious for clogging drains. According to Dr. Powitz, respondent has put other occupants of the building at risk because when feces pile up next to an air in-take, disease can be introduced and according to the New York City Department of Health website, pigeon droppings cause human diseases such as histoplasmosis, cryptococcosis and psittacosis (P22). Dr. Powitz, as a health expert, concluded that respondent’s conduct in feeding the birds was a direct nuisance and risk. Dr. Powitz reviewed the videorecording of the pigeons going to a sill on the third floor of the building on the following time and dates (P9): 7/18/18 @ 6:17 pm 8/01/18@ 6:38 pm 8/02/18 @ 7:12 am 8/05/18 @ 3:39 pm 9/20/18 @ 7:46 am 9/28/18 @ 3:05 pm-48 seconds 9/28/18 @ 8:00 am-4 seconds 9/28/19 @ 2:00 pm-7 minutes and 50 seconds 9/28/18 @ 3:00 pm-3 minutes and 56 seconds 9/29/18 @ 7:00 am-37 minutes and 46 seconds 10/01/18 (a lot of pigeons) 10/02/18 (a lot of pigeons) During cross-examination, Dr. Powitz admitted that he was a paid expert, that he is not registered as a sanitarian in NY and he had no professional authority in New York. Dr. Powitz was not knowledgeable in New York City Health Codes and did not know if feeding pigeons was a violation of any New York rule or regulation. Dr. Powitz admitted that he did not know how many pigeons were at the premises, was only hired two weeks prior to trial, and his one visit to the building was on the morning of his testimony when no pigeons were present, the area was clean, there were no roosting sites on the building or any neighboring building and there was no infestation. Mr. Powitz also admitted no testing was done for the presence of fungus or bacteria. According to the testimony of Dr. Powitz, it appeared there were no pigeons until respondent put out food. According to Dr. Powitz, pigeons look for patterns and, as they were fed at regular intervals, they waited for food. Dr. Powitz also testified according to the photographs and video, the pigeons were roosting on the grey building to the left of the subject premises. The parties stipulated to 31 photographs (P20) which depicted the ground area near the premises. Dr. Powtiz testified that the pictures were typical of a “feeding area” with feathers and defecation. The next witness to testify for petitioner was respondent, Margaret Lee. Respondent testified that she lives alone on the fourth floor of the building as well as part of the third floor and that she never had a lease for the premises. Respondent admitted she fed pigeons from the premises. Through respondent, petitioner offered the stipulation from the Supreme Court action in which respondent agreed to refrain from feeding pigeons at the premises for six months, from November 1, 2017 through May 1, 2017. The stipulation stated that if petitioner believed respondent violated the terms, petitioner was entitled to submit a letter to the court to request a hearing and determine if respondent breached the terms. If petitioner did not establish respondent had violated the terms, the action would be dismissed with prejudice (P13). Respondent testified she believed there was no law against feeding pigeons, she has not fed the pigeons after April 30, 2018 and that at the conclusion of the probationary period from the stipulation in the Supreme Court action (P13), she has not fed the pigeons in front of the building. According to respondent, she started by feeding doves and sometimes pigeons also came to the window. Respondent alleged she would feed the pigeons when she saw the doves, sometimes every day and sometimes multiple times a day. Respondent testified that she prayed for the birds of the city and was saddened by the way the City handled its wildlife. Respondent stated that she tried to “do her part” by putting soaked grains out in small pots and food with moisture on the windowsill. Respondent testified there was never an objection to her feeding the birds in the rear of the building since no one was in the back and she believed there was never a complaint. Respondent denied knowing she could not feed birds in the back of the building. At first respondent did not remember receiving a communication from petitioner which warned her not to feed the birds but later she remembered the letter dated August 1, 2018. Respondent testified the letter stated Ms. Roberts had proof respondent was feeding the birds and requested respondent to stop (P14). Respondent stated she was confused by the letter since at the conclusion of the stipulation, she stopped feeding the birds in front of the building due to the complaint that a bird flew into Oak, a commercial store, located in front of the building. Respondent distinguished feeding birds in the front and feeding birds in the back of the building. Respondent testified she respects God’s creatures. On cross examination, respondent stated that no other tenants complained about her feeding the birds and on redirect, respondent further denied receiving complaints from other tenants at the building. The last witness to testify for petitioner was Saada Roberts. Ms. Roberts is the owner of the building since 2009. The building was previously owned by her mother. Ms. Roberts testified she first became aware of “the situation” in 2017 when a metal grate in front of the building was covered with “poop” at which time she requested that respondent stop feeding the birds. Ms. Roberts further testified that in May, 2018, there was bird poop, seeds and feathers alongside of the building which required her to clear the drain, which was clogged with bird debris including feathers, seeds and once a dead bird. Petitioner submitted a photograph, taken from the roof, in which bird seed and a bird was visible outside respondent’s window (P20). Ms. Roberts also testified that water also backed up, due to the clogged drain, and that caused the roof to “bubble over” and flooding in the basement. Ms. Roberts testified there was a time she had to clean the drains every two days. Ms. Roberts testified that she hired 5 Boro Remodeling, a roofing company, to ensure there were no leaks due to the clogged drain and no leaks were found. Ms. Roberts testified that after she requested respondent to refrain from feeding the birds, respondent fed them more frequently. Ms. Roberts did acknowledge that since the service of the Notice in the instant proceeding, she stopped feeding the birds and there have been no floods. Respondent’s Case Respondent was the only witness to testify on her behalf. Respondent testified she is 68 years old and has lived at the premises for 43 years, since 1978. Respondent described the premises as the fourth floor and part of the third floor which are connected by a staircase. Respondent testified that during the probation period, pursuant to the stipulation in the Supreme Court action (P13), she stopped feeding the birds. Once the period was over, she started to feed the birds again but only from the back of the building because she believed that did not bother anyone. Respondent alleged she spoke with the employees from the commercial tenant, in the front of the building in 2018, and she did not receive any complaints from the commercial tenant or other tenants at the building. Respondent testified that had any tenant complained, she would have stopped feeding the birds. According to respondent, Ms. Roberts, her landlady and only principle of petitioner, was the only person to complain and respondent believed that Ms. Roberts wanted to evict her. Respondent repeated that she fed the birds because New York City is hostile to wildlife, that she was a “good steward of help” with “Christian ethos” as well as an animal activist. Despite her beliefs, respondent testified that she stopped feeding the birds after receipt of the Notice because it adversely affected keeping her home and put her, a senior citizen, at risk for being alone, homeless and without a place to go. Respondent testified that she has ties to the community, her church and is part of the bag and drum corps. On cross examination, respondent admitted she still fed birds in the neighborhood. Respondent also testified that when she fed the birds at the premises, she did not let them in because she is a cat owner. Respondent testified that if she did rescue a bird, she would bring it to animal welfare. Respondent also stated that at the conclusion of the Supreme Court action, she was aware Ms. Roberts did not want her to feed birds at the front of the building but believed that the back of the building was different. Despite this testimony, respondent stated that in summer 2018 she did receive a letter, from Ms. Roberts, which requested she stop feeding the birds at the back of the building but she kept feeding them up through October, 2018 when she received the Notice. On re-direct examination, respondent testified that at the conclusion of the probation, she stopped feeding the birds in the front of the building because that the commercial tenant complained. Lastly, respondent testified that she truly believed the front and back of the building were different and in the future she would “never ever” feed the birds again. Petitioner’s Rebuttal Case Petitioner called Ms. Roberts to testify on its rebuttal case. On rebuttal, Ms. Roberts testified that the commercial tenant signed a lease in September, 2018. According to Ms. Roberts, she received complaints about the drains from the commercial tenant in early September, 2018. On cross examination, Ms. Roberts testified that the commercial tenant inspected the property prior to executing the lease, which included the back yard, and that after the inspection, they opted to take a ten year lease. Loft Law Multiple Dwelling Law §280 et seq. (“Loft Law”) was enacted in 1982 to address problems which resulted from the illegal conversion of commercial loft buildings to residential use. The Loft Law is designed to provide a framework to transition from Interim Multiple Dwellings (“IMDs”) into rent stabilization. Accordingly, portions of the Loft Law and the Rent Stabilization Code (“RSC”) are to be read in pari material. Lower Manhattan Loft Tenants v. New York City Loft Board, 66 NY2d 979 (1985); Kiamie-Princess Marion Realty Corp., v. Lipton, 859 NYS2d 353 (Civ Ct NY 2008). Nuisance The law pertaining to nuisance under the Loft Law and RSC are largely indistinguishable. 29 RCNY§2-08.1 of the Loft Board Regulations provide, in pertinent part: (a) Grounds for eviction. The landlord of an IMD registered with the Loft Board may bring eviction proceedings against the residential occupancy of a unit in a court of competent jurisdiction on any of the following grounds: (2) that the residential occupant is committing or permitting a nuisance in such unit; or is maliciously or by reason of gross negligence substantially damaging the building; or his or her conduct is such as to interfere substantially with the comfort and safety of the landlord or of the other occupants of the same building or of adjacent buildings or structures… 9 NYCRR §2524.3(b) of the RSC also provides that without the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may be only commenced after service of the notice required by §2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows: (b) The tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same of an adjacent building or structure by interfering substantially with their comfort or safety. Under the RSC, nuisance is defined as “a condition that threatens the comfort and safety of others in the building. Key to the definition of nuisance is, “a pattern of continuity or recurrence of objectionable conduct”. Frank v. Park Summit Realty Corp., 175 AD2d 33, 35 (1991) mod on other grounds 79 NY2d 789 (1991). Case law has 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 130(A), *1, 880 NYS2d 8876, (App. Term 1st Dept. 2009). The Court of Appeals has specifically held that not every annoyance will rise to the level of a nuisance, Domen Holding Co v. Aranovich, 1 NY3d 117, 124, 769 NYS2d 785, 802 NE2d 135 (Ct. Appeals 2003) and in order to prevail on a cause of action for nuisance, the plaintiff must establish a “pattern of continuity or recurrence of objectionable conduct which interfered with a person’s interest in the use and enjoyment of land”. See Domen Holding Co, supra. Furthermore, to constitute a cause of action for nuisance, it is imperative that the conduct affect other residents in the building. In the Matter of Sumeti Associates v. Rany Irizarry, 103 AD3d 653, 959 NYS2d 254 (App. Div 2nd Dept 2013). Hypothetical impacts do not rise to the level of nuisance. Warren LLC v. Daza, 938 YS2d 230 (App. Term 2nd Dept 2010). Lastly, the threat posed by the nuisance must be imminent, not theoretical, Rubin v. Glasner, 2002 NY Misc. Lexis 2905 (Civ Ct. NY County) and the court must weigh the quantitative and qualitative aspects under each specific set of circumstances. Timston Corp. v. Kienzle, 2019 NYLJ Lexis 2645, *12 (Civ Ct. NY County). Application of Law to Facts In this proceeding petitioner failed to present testimonial or documentary evidence that established that respondent’s conduct interfered with the substantial use and enjoyment of the property by other residents. See In the Matter of Sumeti Associates, supra. Although petitioner argues that respondent’s conduct rises to the level of a nuisance and alleges this proceeding is directly on point with the Court’s decision in Joyce Properties, Inc. v. Rubi, 52 Misc2d 360, 826, 277 NYS2d 18, 20 (Civ. Ct. NY 1967) afff’d 54 Misc2d 360, 282 NYS2d 66 (App. Term 2nd Dept. 1967), this Court does not agree. In Joyce Properties, supra., where the court found a nuisance existed, the tenant fed the bird 23-30 pounds of food a day and harbored pigeons in his apartment. Unlike the instant proceeding, in Joyce Properties, supra., the police and health department made many visits to the apartment to induce the tenant to stop feeding the pigeons and a tenant in the adjacent apartment testified the feeding of the pigeons took place at least four or five times a day, sometimes starting at 5:30 am, and the noise prevented her from sleeping. The tenant also testified that there were offensive odors attributable to the pigeons. In Joyce Properties, supra., the police testified the tenant’s apartment was filthy and constituted an “intolerable living condition” including pigeons living in the apartment, feeding bowls for the pigeons and one pigeon was even called by name. In contrast to Joyce Properties, supra., in this proceeding there was no testimony from any other residential, commercial or neighboring tenant which alleged that respondent’s conduct substantially interfered with their use of their apartments or building. In the Matter of Sumeti Associates v. Rany Irizarry, 103 AD3d 653, 959 NYS2d 254 (App. Div 2nd Dept 2013). Although Dr. Powitz testified that when feces piles up next to an air in-take, disease can be introduced and according to the New York City Department of Health website, pigeon droppings cause human diseases such as histoplasmosis, cryptococcosis and psittacosis (P22) and therefore concluded respondent’s conduct was a direct nuisance, petitioner failed to offer test results to prove the presence of bacterial or fungal disease in the bird droppings. Dr. Powitz merely supplied scientific and medical evidence which indicated that pigeons are known to carry some diseases and as stated above, hypothetical impacts cannot rise to the level of nuisance, Warren LLC v. Daza, 938 YS2d 230 (App. Term 2nd Dept 2010). Lastly, although the court qualified Dr. Powitz, as an expert sanitarian, it is notable that Dr. Powitz is not registered as an expert in New York, he was not aware of New York Law or if respondent’s conduct was against the law. Accordingly, Dr. Powitz was not qualified to determine whether respondent’s conduct constituted a nuisance within the context of a landlord-tenant proceeding. Further, during the one and only time Dr. Powitz visited the premises, there was no evidence of any bird feeding or disease as a result of the pigeon droppings. Additionally, although Ms. Roberts testified that respondent’s conduct caused damage to the mortar at the building, clogged the drain and caused flooding and submitted some photographs which showed birds and bird droppings, there was no documentary evidence to prove the dates, times and extent of the alleged damage caused by respondent. Petitioner failed to submit any documentary evidence as the cost of repairing the damage nor did petitioner have a contractor or other individual testify as to the work needed to cure the alleged damage. This Court believes this proceeding is akin to RSP UAP-2 Property, LLC v. Zarka, 49 Misc3d 1219(A), 28 NYS3d 650 (Civ Ct NY County 2015) wherein Judge Kraus distinguished RSP, supra. from Joyce Properties, supra. and held that pigeons are not inherently dangerous. Judge Kraus found it relevant that there was no expert testimony which stated the tenant’s conduct in feeding pigeons was a violation of law, there were no violations placed at the premises by a government agency and there was no testimony from other residents about the negative impact that respondent’s conduct caused them. Accordingly Judge Kraus held that respondent’s conduct in feeding the pigeons did not constitute a nuisance and dismissed the petition. The same factual statements exist in the case at bar. Lastly, in weighing the quantitative and qualitative aspects under the circumstances in the case at bar, Timston Corp. v. Kienzle, supra., this Court must balance the equities herein. This Court looks to the fact that respondent is a senior citizen who has resided in the premises since 1978 combined with the lack of evidentiary evidence as to how respondent’s conduct impacted other residents and the lack of evidence as to the damages combined with the undisputed testimony that respondent had not fed the birds from October 16, 2018, through February, 2021. Accordingly, the Court finds respondent’s alleged conduct does not rise to the level of a nuisance. Conclusion After trial, the petition is dismissed. To arrange for pickup of exhibits you can email Tanya Faye at [email protected]. Dated: May 5, 2021
