DECISION AND ORDER Defendant moves pursuant to C.P.L.R. §3211(a)(1) and (7) to dismiss the complaint by two parents, suing on their own and their children’s behalf. I. PLAINTIFFS’ FACTUAL ALLEGATIONS Plaintiff Ervin Mrishaj purchased a proprietary lease for apartment D2K at 920 Pelhamdale Avenue, Pelham, New York, from nonparty cooperative Caroline Gardens Apartment Corporation October 5, 2021. He, his wife, plaintiff Tropoj Mrishaj, and their two children moved into the apartment at the beginning of November 2021. Defendant resided in apartment D1K, directly below plaintiffs. Plaintiffs allege that every day, from November 5, 2021, to March 25, 2022, defendant constantly screamed profanities at plaintiffs and repeatedly struck her ceiling with a broom or similar hard object. They allege that defendant’s conduct adversely affected plaintiffs’ sleep and health and the development of the children, particularly plaintiffs’ child E.M., who ran screaming to her parents from the noise. Defendant also had a personal relationship with the president of the cooperative’s board of directors, which defendant leveraged to convince the cooperative to issue a notice of termination to plaintiffs March 2, 2022. Plaintiffs subsequently vacated their apartment March 25, 2022. On June 22, 2022, defendant claimed to Ervin Mrishaj’s parents, who also resided in the same building, that she had evicted plaintiffs. II. APPLICABLE STANDARDS Upon a motion to dismiss the complaint, the court considers the complaint’s factual allegations as true. Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d 236, 239 (2021); Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 (2021); Yovich v. Montefiore Nyack Hosp., 212 A.D.3d 425, 426 (1st Dep’t 2023). In a motion pursuant to C.P.L.R. §3211(a)(7), defendant bears the burden to establish that the complaint “fails to state a viable cause of action.” Connolly v. Long Island Power Auth., 30 N.Y.3d 719, 728 (2018). Dismissal is warranted if the complaint fails to allege facts that “fit within any cognizable legal theory.” Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d at 239. A motion to dismiss based on documentary evidence pursuant to C.P.L.R. §3211(a)(1) will succeed only if admissible documentary evidence completely refutes plaintiffs’ factual allegations, resolving all factual issues as a matter of law. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d at 175; Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 601 (2017); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dep’t 2019). The court may not consider defendant’s affidavit denying her conduct. Serao v. Bench-Serao, 149 A.D.3d 645, 646 (1st Dep’t 2017); Calpo-Rivera v. Siroka, 144 A.D.3d 568, 568 (1st Dep’t 2016); Asmar v. 20th & Seventh Assoc., LLC, 125 A.D.3d 563, 564 (1st Dep’t 2015); City of New York v. VJHC Dev. Corp., 125 A.D.3d 425, 426 (1st Dep’t 2015). Defendant moves to dismiss each of plaintiffs’ claims: (1) unlawful eviction, (2) nuisance and harassment, (3) personal injury, (4) intentional infliction of emotional distress, (5) damage to Ervin Mrishaj’s leasehold, and (6) tortious interference with a contract or business relations. C.P.L.R. §§3211(a)(1) and (7). The court grants defendant’s motion in part as follows. III. PLAINTIFFS’ UNLAWFUL EVICTION CLAIM New York Real Property Actions and Proceedings Law (R.P.A.P.L.) §853 provides a cause of action for unlawful eviction, which allows plaintiffs to recover treble damages, if defendant forcibly or unlawfully disseized, ejected, or removed plaintiffs from real property. Although the removal need not be forcible, the amendment adding unlawful as an alternative to forcible means was intended to remedy a lessor’s other, nonforcible, but physical impediments to lessees’ possession of real property, such as changing the door locks or removing the lessees’ personal property when the lessees are away from the premises. Hood v. Koziej, 140 A.D.3d 563, 565 (1st Dep’t 2016); Mayes v. UVI Holdings, 280 A.D.2d 153, 160 (1st Dep’t 2000). The complaint alleges that defendant’s repeated banging on her ceiling below plaintiffs’ apartment and her screaming of profanities, frightening the children and interrupting plaintiffs’ sleep, caused plaintiffs to leave their apartment after several months. Plaintiffs do not allege that defendant deprived them of access to their apartment. Weiss v. Bretton Woods Conominium II, 203 A.D.3d 1100, 1102 (2d Dep’t 2022). They still owned and were allowed to use their apartment. Instead, plaintiffs decided to leave their apartment because defendant caused the conditions to become intolerable, akin to a constructive eviction, which does not qualify as a violation of R.P.A.P.L. §853. Moreover, like constructive eviction, an eviction in violation of R.P.A.P.L. §853 applies to lessor-lessee disputes. Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82 (1970); 7001 E. 71st St., LLC v. Millenium Health Servs., 138 A.D.3d 573, 573 (1st Dep’t 2016); Schwartz v. Hotel Carlyle Owners Corp., 132 A.D.3d 541, 542 (1st Dep’t 2015); Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172 (1st Dep’t 2010). Section 853 is designed to safeguard the rights of lessees against their lessors, not against neighboring lessees. No authority discloses the statute’s application outside a lessor-lessee dispute. In opposition to defendant’s motion, plaintiffs emphasize their allegation that on June 22, 2022, defendant admitted to evicting them, but again plaintiffs do not allege that defendant actually removed them or their personal property from their apartment or otherwise deprived them of their ownership or possession of their apartment. Although R.P.A.P.L. §853 does not require that defendant forcibly removed them or their personal property or forcibly changed their apartment door lock, the statute at minimum requires unlawful conduct. Hood v. Koziej, 140 A.D.3d at 566; Rocke v. 1041 Bushwick Ave. Assoc., Inc., 169 A.D.2d 525, 525 (1st Dep’t 1991). Her mere claim that she evicted plaintiffs was not unlawful. Therefore, absent allegations of a physical, unlawful removal, plaintiffs fail to state a claim for unlawful eviction. IV. NUISANCE AND HARASSMENT A private nuisance claim requires factual allegations that defendant’s action or omission substantially, intentionally, and unreasonably interfered with plaintiffs’ right to use and enjoy real property. Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 123 (2003); Copart Indus., Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568 (1977); O’Hara v. Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 A.D.3d 476, 477 (1st Dep’t 2022). Defendant’s objectionable conduct must be continuous or recurring. Domen Holding Co. v. Aranovich, 1 N.Y.3d at 123; Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st Dep’t 2012); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 41 (1st Dep’t 2011). Plaintiffs’ allegations show that defendant engaged in continuous and recurring conduct that interfered with their sleep and enjoyment of their apartment. Therefore the court denies defendant’s motion to dismiss plaintiffs’ nuisance claim. O’Hara v. Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 A.D.3d at 477. The court dismisses plaintiffs’ claim for harassment, however, as “New York does not recognize a common-law cause of action for harassment.” Garza v. Nunz Realty, LLC, 187 A.D.3d 467, 467 (1st Dep’t 2020)(quoting Edelstein v. Farber, 27 A.D.3d 202, 202 (1st Dep’t 2006)). V. PERSONAL INJURY Plaintiffs vaguely allege a claim for “personal injury” without further specification. Plaintiffs insisted at oral argument, however, that their allegations support claims for both assault and a prima facie tort. To establish assault, plaintiffs must show physical conduct causing their apprehension of immediate harmful contact. Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154, 166 (1st Dep’t 2022); Corcoran v. City of New York, 186 A.D.3d 1151, 1151 (1st Dep’t 2020). Yet the verified complaint and plaintiffs’ affidavits, at best, describe only their apprehension of defendant’s disturbing loud noise and profanities. Plaintiffs nowhere describe any threat of immediate physical harm: that defendant was about to strike through the ceiling or through plaintiffs’ door into their apartment or attack plaintiffs elsewhere in the building, for example. Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 166; Corcoran v. City of New York, 186 A.D.3d at 1151; Joon Song v. MHM Sponsors Co., 176 A.D.3d 572, 573 (1st Dep’t 2019). To establish a prima facie tort, plaintiffs must show (1) intentional infliction of harm, (2) causing special damages, in the form of a specific, measurable loss, (3) without justification or excuse, (4) by otherwise lawful acts. Posner v. Lewis, 18 N.Y.3d 566, 570 n.1 (2012); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43 (1985); Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332 (1983). Although plaintiffs allege that they lost their apartment, they do not specify that they sold it for less than their investment in it or that they could not find a comparable apartment for the same price. Lewis v. Pierce Bainbridge Beck Price Hecht LLP, 195 A.D.3d 518, 519 (1st Dep’t 2021); Hakim v. James, 169 A.D.3d 450, 452 (1st Dept 2019); Britt v. City of New York, 151 A.D.3d 606, 607 (1st Dep’t 2017); Wigdor v. SoulCycle, LLC, 139 A.D.3d 613, 614 (1st Dep’t 2016). Even if plaintiffs’ loss of their apartment constitutes special damages, however, their allegations about defendant’s conduct, particularly her admission that she effected plaintiffs’ eviction, demonstrate that she acted out of a motive to evict plaintiffs, rather than pure disinterested malevolence. Hakim v. James, 169 A.D.3d at 452; Britt v. City of New York, 151 A.D.3d at 607; AREP Fifty-Seventh, LLC v. PMGP Assoc., L.P., 115 A.D.3d 402, 403 (1st Dep’t 2014). Last, plaintiffs’ prima facie tort claim duplicates their claim for intentional infliction of emotional distress. Maak v. Medina Professional Firefighters Assn., IAFF Local 2161, 186 A.D.3d 1016, 1017 (4th Dep’t 2020). Therefore the court grants defendant’s motion to dismiss plaintiffs’ claim for “personal injury,” regardless whether it suggests a claim for assault or a prima facie tort. VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS A claim for intentional infliction of emotional distress requires plaintiffs to demonstrate (1) that defendant engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that such conduct would cause severe emotional distress, (3) a causal connection between defendant’s acts and plaintiffs’ injury, and (4) severe emotional distress. Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 56 (2016); Silverman v. Park Towers Tenants Corp., 206 A.D.3d 417, 418 (1st Dep’t 2022); Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 165. In particular, plaintiffs must show that defendant’s conduct was “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.” Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 56; Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 23 (2008). Plaintiffs allege that defendant intentionally harassed them from within her apartment by constantly shouting profanities and loudly striking her ceiling, which disrupted plaintiffs’ sleep and adversely affected their health, for over four months, with the objective of evicting them. They allege that defendant yelled the profanities despite her knowledge of the young children residing in the apartment and that her conduct traumatized at least one child. Tropoj Mrishaj attests that, when defendant banged on her ceiling and shouted at plaintiffs, their child ran to her mother screaming and crying and suffered long term effects from these repeated episodes. She refused to sleep or play alone. At night she frequently woke up terrified by nightmares. Every day she threw tantrums. She became too distracted to focus and learn and changed from happy and friendly to angry and distant. Assuming these allegations to be true, they describe a campaign of indecent, intolerable, and uncivilized conduct intended to be offensive and causing severe mental and physical harm to at least one child that satisfies the high bar of an intentional infliction of emotional distress claim. Silverman v. Park Towers Tenants Corp., 206 A.D.3d at 418; Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 165. In support of the motion, defendant presents text messages indicating an amicable relationship between plaintiffs and defendant. Even assuming that defendant offers this unsworn hearsay to show plaintiffs’ state of mind and not impermissibly for the truth of the messages, they do not constitute “documentary evidence” that may support defendant’s motion. C.P.L.R. §3211(a)(1); Kalaj v. 21 Fountain Place, LLC, 169 A.D.3d 657, 658 (2d Dep’t 2019). They do not completely refute plaintiffs’ allegations, since they do not encompass every interaction between the parties from November 5, 2021, to March 25, 2022. Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544, 544 (1st Dep’t 2023); Whitestone Constr. Corp. v. F.J. Sciame Constr. Co. Inc., 194 A.D.3d 532, 534 (1st Dep’t 2021). As Ervin Mrishaj explains, the text messages predated plaintiff’s move into their apartment or reflect his diplomatic efforts early in their tenancy to appease defendant and diffuse the tension. Therefore the court denies defendant’s motion to dismiss plaintiffs’ claim for intentional infliction of emotional distress. VII. DAMAGE TO THE LEASEHOLD The court considers plaintiffs’ claim for damage to their leasehold abandoned, as they did not oppose defendant’s motion to dismiss this claim. Disla v. Biggs, 191 A.D.3d 501, 501 (1st Dep’t 2021); Burgos v. Premiere Properties, Inc., 145 A.D.3d 506, 508 (1st Dep’t 2016). Moreover, this claim merely reiterates that defendant’s conduct impaired use of their apartment, which duplicates their private nuisance claim. Therefore the court grants defendant’s motion to dismiss plaintiffs’ claim for damage to their leasehold. VIII. TORTIOUS INTERFERENCE WITH A CONTRACT OR BUSINESS RELATIONS Plaintiffs’ final claim alleges that defendant caused the cooperative to issue a notice of termination to plaintiffs, but they admit that the cooperative did not actually evict them. Thus plaintiffs fail to substantiate how they were injured as a result of defendant’s alleged interference with plaintiffs’ contract or other relationship with the cooperative, Joon Song v. MHM Sponsors Co., 176 A.D.3d at 572, which warrants dismissal of this claim as well. IX. CONCLUSION Finally, plaintiffs claim disclosure will defeat dismissal of claims that currently fail. C.P.L.R. §3211(d). The evidence plaintiffs expect to present, however, is not from defendant, but is from plaintiffs’ own experts, which plaintiff were free to present now in opposition to dismissal. Nor do plaintiffs suggest what claims plaintiffs’ experts would support other than intentional infliction of emotional distress, which already survives. Consequently, for the reasons explained above, the court grants defendant’s motion to dismiss plaintiffs’ claims except their claims for private nuisance and intentional infliction of emotional distress. C.P.L.R. §3211(a)(1) and (7). Defendant shall answer the remaining claims in the complaint within 10 days after service of this order with notice of entry. C.P.L.R. §3211(f). The parties shall attend a Preliminary Conference via video July 18, 2023, at 11:00 a.m. This decision constitutes the court’s order. Dated: June 12, 2023
