Landlord-Tenant—Nuisance—Tenant Smoked Inside Apartment—No House Rule Or Lease Provision Prohibited Such Conduct—Arguments With Other Tenants Were Isolated Incidents—Subjective Fear Is Not Actionable—Traffic Created By Caregivers to Disabled Child Did Not Constitute a Nuisance

This decision by the Appellate Term (court), involved a holdover proceeding “to recover possession of a rent-controlled apartment on the ground that tenant created a nuisance.” The tenant asserted that the alleged misconduct could not constitute a nuisance and other allegations were “vague and conclusory” and “were insufficient” to constitute a nuisance claim. A jury had returned a verdict in the landlord's favor. The trial court granted the tenant's motion to set aside the verdict, pursuant to CPLR 4404(a) and entered a judgment dismissing the petition. The court affirmed.

The New York City Rent and Eviction Regulations state that a tenant commits or permits a nuisance when “his conduct is such as to interfere substantially with the comfort and safety of the landlord or of other tenants”…. To constitute a nuisance, a tenant must “interfere with a person's interest in the use and enjoyment of land”…. “Not every annoyance will constitute a nuisance”…. Rather, “[n]uisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct'”….

In order to set aside a jury verdict on the grounds that it is not supported by sufficient evidence, a court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial.” The court found that the trial court had afforded the landlord “every inference that may be properly drawn from the evidence presented…, and viewing the evidence in the light most favorable to landlord, properly granted the branch of tenant's motion, . . ., seeking to set aside the jury verdict …and for judgment as a matter of law dismissing the petition.”

Although the evidence indicated that the tenant smoked inside her apartment, “there was no house rule or provision in the lease which prohibited such conduct.” Moreover, there was no evidence that the tenant had smoked in the common areas. The court held that the tenant's “smoking did not constitute a nuisance.”

Additionally, “the tenant's severely disabled teenage daughter” required extensive care and there was “a 'stream' of 'traffic' to tenant's apartment by various caregivers.” The court held that such “conduct did not amount to a nuisance.”

The landlord had also claimed that the tenant was argumentative with neighbors. The court explained that “[a]bsent evidence that a tenant actually poses a 'continuing threat to others,' a neighbor's subjective fear is not an actionable nuisance….” Here, there were “isolated incidents” that “did not rise to the level of a nuisance.” Finally, the court held that evidence “failed to establish that tenant 'continually' left trash outside of the trash receptacles.” Accordingly, the court affirmed the trial court's dismissal of the petition.

Jovic v. Blue, 2016-965 Q C, NYLJ 1202795480493, at *1 (App. Div., 2d, Decided Aug. 4, 2017), Before: Pesce, P.J., Weston, Aliotta, JJ. All concur.

Foreclosures—Original Promissory-Note Lost—Lender Satisfied UCC 3-804 and Entitled to Judgment

A lender moved for a summary judgment and an order of reference. “Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note ['note'], and evidence of default.” The court explained that “[n]otwithstanding failure to produce the original …note[], the [holder] could still recover pursuant to UCC 3-804, which deals with lost, destroyed or stolen instruments and requires the requesting party to prove ownership of the note[], the circumstances of the loss and [the note's] terms.”

When a defendant challenges the plaintiff's standing, the plaintiff must present “evidence that it was the holder or assignee of the subject mortgage and underlying note at the time the action was commenced…. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.”

The plaintiff had made “a prima facie showing of its entitlement to judgment as a matter of law by producing a copy of the mortgage, evidence of the lost note and its terms, and a note & mortgage purchase agreement that sets forth the date of defendant's default. With respect to the lost note, plaintiff submitted an allonge to prove ownership, a recital in the mortgage that details the terms of the note including the total amount owed and the term of the loan, and lost note affidavits to account for the note's loss.”

The court found that the plaintiff met the requirements of UCC §3-804 and had “sufficiently defeated any triable issues with respect to the note's existence, terms, and whereabouts.” The plaintiff had also “established its standing by the allonge, which endorsed the note to plaintiff.”

The defendant argued that the mortgage was “void ab initio because the original mortgagees acted as trustees for the property owner, who did not authorize the property's transfer to defendant.” The court rejected such argument, citing the defendant's “conduct in accepting the benefit under the note and mortgage and in making seventeen payments on the loan such that he waived any right he may have had to repudiate it.”

The defendant had also asserted that his covenant to pay was “subject to a condition precedent,” i.e., compliance with a mortgage rider. The court found that “the terms of the …rider concern payment of the full loan balance upon certain conditions, and is irrelevant to the present case.” The court also rejected the defendant's arguments with respect to consideration and fraud. The court granted the plaintiff's motion for summary judgment and for an order of reference.

Comment: Attorney for the lender, Adam Leitman Bailey, stated, inter alia, that this case demonstrates that “notwithstanding [the] failure to produce the original promissory note[], the [holder] could still recover pursuant to UCC 3–804, which deals with lost, destroyed or stolen instruments and requires the requesting party to prove ownership of the note[], the circumstances of the loss and [its] terms.” Mr. Bailey also noted that the borrower's assertion that the mortgage was void ab initio, was rejected because the borrower reaped the benefits under the note and mortgage, had made 17 payments on the note without objection and had thereby ratified the note and waived any right to repudiate obligations thereunder. The borrower filed a notice of appeal.

Liev v. Jones, Sup. Ct., Kings Co., Index No. 511434/2015, decided Aug. 14, 2017, Dear, J.

Landlord-Tenant—Nuisance—“Banging, Yelling, Loud Music, Barking Dog”—Termination Notice Lacked Sufficient Detail

A landlord commenced a summary holdover proceeding, alleging that a tenant violated her lease by “harassing and annoying other tenants in the building.” The tenant moved to dismiss, alleging that the predicate notice was defective and the petition failed to state a cause of action. Alternatively, the tenant sought discovery and leave to interpose an answer.

Rent Stabilization Code 2524.2(b) requires that a termination notice state “the facts necessary to establish the existence” of a ground for eviction. The notice must cite “specific facts so as to provide the tenants with sufficient notice of the case against them.” Although “dates and times are not required in a predicate notice, it is relevant to the court's inquiry as to the sufficiency of the notice.”

Here, the landlord made the “blanket allegation” that the tenant “harasses and annoys” other tenants in the building and alleged that the tenant had “caused other tenants to vacate because she bangs on the walls and the ceilings 'daily.'”

The notice failed to state “when the banging and noise allegedly began or what type of noise occurred, or the time day or night when this behavior allegedly occurs.” The absence of such details rendered the notice deficient. A court in a prior case found a notice sufficient when it described the misconduct as “yelling and screaming…, unreasonably loud television and music/stereo playing, slamming of drawers and doors, barking dog and vacuuming during late evening and early morning hours.” Since the defects in the predicate notice were not subject to cure and the notice of termination also failed to “allege any new facts following the cure deadline which confirmed that respondent failed to cure,” the court granted the motion to dismiss the petition.

Ciampa Bell v. Han, L&T 61225/17, NYLJ 1202796094262, at *1 (Civ., QU, Decided Aug. 11, 2017), Kullas, J.

Contract Invalid—Purchaser Sought Refund of Down Payment—Contract Signed by Person Identified As Executor When the Record Owner Was A Trust—Co-Trustee Never Signed the Contract

This decision relates to a contract of sale for real estate between the plaintiff purchasers and the defendant sellers. The purchasers sought a refund of their down payment and punitive damages and also asserted claims for breach of contract and anticipatory breach. The sellers cross-claimed for breach of contract and for attorney fees and costs. The sellers had moved pursuant to CPLR §3211(a)(1) and (7) to dismiss the complaint and for summary judgment on their counterclaim for a declaratory judgment. The purchasers cross-moved for summary judgment.

The title owners of the property are “A” and “B.” as trustees of a trust created under a will of “C.” The contract identified the seller as “['A'], executor of the estate of ['C'].” The contract “contains a handwritten correction …changing the name of the seller from ['A'] as executor of the estate of ['C'] to '['A'] as trustee of last W+T of ['C'].” However, the contract was signed by “A.” as executor and the purchasers. “B.” the co-trustee of the Trust never signed the contract. A contract rider contained no changes and also lists the seller as “A.” the executor of the estate of “C.” The rider was signed by “A” (seller) and the purchasers, not by “B.”

The purchasers argued that since the contract “listed a seller who did not possess title to the property, and the contract was signed by only one trustee of the titled owner trust and not both, the contract is null and void and, accordingly, they are entitled to a return of their down payment.”

The purchasers' title report stated that the titled owner of the property was “A” and “B.” “as trustees of the trust created under …the last will” of “C.” The title reports contained an exception which stated that “[t]he contract …must be amended to conform to the certification of title as reflected herein.” No contract amendment had ever been executed.

The sellers argued that “the discrepancy between the seller listed in the contract and the name of the titled owners” was only “a scrivener's error, that ['B's'] signature was not necessary” since “she was aware of the contract and participated in the transaction, that no amended contract was ever requested, and that, …they produced ready, willing and able sellers and that both ['A'] and ['B'] signed all transfer documents which remedies any defect.” The sellers provided an affidavit from “B.” indicating that she knew of the sale and “did not believe her signature to the contract was necessary based upon ['A's'] having signed the contract and on her limited role as co-trustee.”

The court explained that “[a] deed from a person not in possession, or not shown to be the owner, establishes no title.” Here, the contract was signed by “A.” as executor of the estate “who had no interest in the property and was unable to enter into a contract for the sale of the property.” The court found that the handwritten correction on the contract was “of no moment inasmuch as the contract was signed by '['A'], executor' and the rider still listed the seller as ['A'] as executor….” The court held that absent a valid contract, the purchasers were entitled to the return of their down payment and granted the purchasers' motion for summary judgment for return of the down payment.

Leonard H. Shapiro Revocable Living Trust v. Achenbaum, 605858/2016, NYLJ 1202796204192, at *1 (Sup., NA, Decided Aug. 9, 2017), Capetola, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.

Landlord-Tenant—Nuisance—Tenant Smoked Inside Apartment—No House Rule Or Lease Provision Prohibited Such Conduct—Arguments With Other Tenants Were Isolated Incidents—Subjective Fear Is Not Actionable—Traffic Created By Caregivers to Disabled Child Did Not Constitute a Nuisance

This decision by the Appellate Term (court), involved a holdover proceeding “to recover possession of a rent-controlled apartment on the ground that tenant created a nuisance.” The tenant asserted that the alleged misconduct could not constitute a nuisance and other allegations were “vague and conclusory” and “were insufficient” to constitute a nuisance claim. A jury had returned a verdict in the landlord's favor. The trial court granted the tenant's motion to set aside the verdict, pursuant to CPLR 4404(a) and entered a judgment dismissing the petition. The court affirmed.

The New York City Rent and Eviction Regulations state that a tenant commits or permits a nuisance when “his conduct is such as to interfere substantially with the comfort and safety of the landlord or of other tenants”…. To constitute a nuisance, a tenant must “interfere with a person's interest in the use and enjoyment of land”…. “Not every annoyance will constitute a nuisance”…. Rather, “[n]uisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct'”….

In order to set aside a jury verdict on the grounds that it is not supported by sufficient evidence, a court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial.” The court found that the trial court had afforded the landlord “every inference that may be properly drawn from the evidence presented…, and viewing the evidence in the light most favorable to landlord, properly granted the branch of tenant's motion, . . ., seeking to set aside the jury verdict …and for judgment as a matter of law dismissing the petition.”

Although the evidence indicated that the tenant smoked inside her apartment, “there was no house rule or provision in the lease which prohibited such conduct.” Moreover, there was no evidence that the tenant had smoked in the common areas. The court held that the tenant's “smoking did not constitute a nuisance.”

Additionally, “the tenant's severely disabled teenage daughter” required extensive care and there was “a 'stream' of 'traffic' to tenant's apartment by various caregivers.” The court held that such “conduct did not amount to a nuisance.”

The landlord had also claimed that the tenant was argumentative with neighbors. The court explained that “[a]bsent evidence that a tenant actually poses a 'continuing threat to others,' a neighbor's subjective fear is not an actionable nuisance….” Here, there were “isolated incidents” that “did not rise to the level of a nuisance.” Finally, the court held that evidence “failed to establish that tenant 'continually' left trash outside of the trash receptacles.” Accordingly, the court affirmed the trial court's dismissal of the petition.

Jovic v. Blue, 2016-965 Q C, NYLJ 1202795480493, at *1 (App. Div., 2d, Decided Aug. 4, 2017), Before: Pesce, P.J., Weston, Aliotta, JJ. All concur.

Foreclosures—Original Promissory-Note Lost—Lender Satisfied UCC 3-804 and Entitled to Judgment

A lender moved for a summary judgment and an order of reference. “Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note ['note'], and evidence of default.” The court explained that “[n]otwithstanding failure to produce the original …note[], the [holder] could still recover pursuant to UCC 3-804, which deals with lost, destroyed or stolen instruments and requires the requesting party to prove ownership of the note[], the circumstances of the loss and [the note's] terms.”

When a defendant challenges the plaintiff's standing, the plaintiff must present “evidence that it was the holder or assignee of the subject mortgage and underlying note at the time the action was commenced…. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.”

The plaintiff had made “a prima facie showing of its entitlement to judgment as a matter of law by producing a copy of the mortgage, evidence of the lost note and its terms, and a note & mortgage purchase agreement that sets forth the date of defendant's default. With respect to the lost note, plaintiff submitted an allonge to prove ownership, a recital in the mortgage that details the terms of the note including the total amount owed and the term of the loan, and lost note affidavits to account for the note's loss.”

The court found that the plaintiff met the requirements of UCC §3-804 and had “sufficiently defeated any triable issues with respect to the note's existence, terms, and whereabouts.” The plaintiff had also “established its standing by the allonge, which endorsed the note to plaintiff.”

The defendant argued that the mortgage was “void ab initio because the original mortgagees acted as trustees for the property owner, who did not authorize the property's transfer to defendant.” The court rejected such argument, citing the defendant's “conduct in accepting the benefit under the note and mortgage and in making seventeen payments on the loan such that he waived any right he may have had to repudiate it.”

The defendant had also asserted that his covenant to pay was “subject to a condition precedent,” i.e., compliance with a mortgage rider. The court found that “the terms of the …rider concern payment of the full loan balance upon certain conditions, and is irrelevant to the present case.” The court also rejected the defendant's arguments with respect to consideration and fraud. The court granted the plaintiff's motion for summary judgment and for an order of reference.

Comment: Attorney for the lender, Adam Leitman Bailey, stated, inter alia, that this case demonstrates that “notwithstanding [the] failure to produce the original promissory note[], the [holder] could still recover pursuant to UCC 3–804, which deals with lost, destroyed or stolen instruments and requires the requesting party to prove ownership of the note[], the circumstances of the loss and [its] terms.” Mr. Bailey also noted that the borrower's assertion that the mortgage was void ab initio, was rejected because the borrower reaped the benefits under the note and mortgage, had made 17 payments on the note without objection and had thereby ratified the note and waived any right to repudiate obligations thereunder. The borrower filed a notice of appeal.

Liev v. Jones, Sup. Ct., Kings Co., Index No. 511434/2015, decided Aug. 14, 2017, Dear, J.

Landlord-Tenant—Nuisance—“Banging, Yelling, Loud Music, Barking Dog”—Termination Notice Lacked Sufficient Detail

A landlord commenced a summary holdover proceeding, alleging that a tenant violated her lease by “harassing and annoying other tenants in the building.” The tenant moved to dismiss, alleging that the predicate notice was defective and the petition failed to state a cause of action. Alternatively, the tenant sought discovery and leave to interpose an answer.

Rent Stabilization Code 2524.2(b) requires that a termination notice state “the facts necessary to establish the existence” of a ground for eviction. The notice must cite “specific facts so as to provide the tenants with sufficient notice of the case against them.” Although “dates and times are not required in a predicate notice, it is relevant to the court's inquiry as to the sufficiency of the notice.”

Here, the landlord made the “blanket allegation” that the tenant “harasses and annoys” other tenants in the building and alleged that the tenant had “caused other tenants to vacate because she bangs on the walls and the ceilings 'daily.'”

The notice failed to state “when the banging and noise allegedly began or what type of noise occurred, or the time day or night when this behavior allegedly occurs.” The absence of such details rendered the notice deficient. A court in a prior case found a notice sufficient when it described the misconduct as “yelling and screaming…, unreasonably loud television and music/stereo playing, slamming of drawers and doors, barking dog and vacuuming during late evening and early morning hours.” Since the defects in the predicate notice were not subject to cure and the notice of termination also failed to “allege any new facts following the cure deadline which confirmed that respondent failed to cure,” the court granted the motion to dismiss the petition.

Ciampa Bell v. Han, L&T 61225/17, NYLJ 1202796094262, at *1 (Civ., QU, Decided Aug. 11, 2017), Kullas, J.

Contract Invalid—Purchaser Sought Refund of Down Payment—Contract Signed by Person Identified As Executor When the Record Owner Was A Trust—Co-Trustee Never Signed the Contract

This decision relates to a contract of sale for real estate between the plaintiff purchasers and the defendant sellers. The purchasers sought a refund of their down payment and punitive damages and also asserted claims for breach of contract and anticipatory breach. The sellers cross-claimed for breach of contract and for attorney fees and costs. The sellers had moved pursuant to CPLR §3211(a)(1) and (7) to dismiss the complaint and for summary judgment on their counterclaim for a declaratory judgment. The purchasers cross-moved for summary judgment.

The title owners of the property are “A” and “B.” as trustees of a trust created under a will of “C.” The contract identified the seller as “['A'], executor of the estate of ['C'].” The contract “contains a handwritten correction …changing the name of the seller from ['A'] as executor of the estate of ['C'] to '['A'] as trustee of last W+T of ['C'].” However, the contract was signed by “A.” as executor and the purchasers. “B.” the co-trustee of the Trust never signed the contract. A contract rider contained no changes and also lists the seller as “A.” the executor of the estate of “C.” The rider was signed by “A” (seller) and the purchasers, not by “B.”

The purchasers argued that since the contract “listed a seller who did not possess title to the property, and the contract was signed by only one trustee of the titled owner trust and not both, the contract is null and void and, accordingly, they are entitled to a return of their down payment.”

The purchasers' title report stated that the titled owner of the property was “A” and “B.” “as trustees of the trust created under …the last will” of “C.” The title reports contained an exception which stated that “[t]he contract …must be amended to conform to the certification of title as reflected herein.” No contract amendment had ever been executed.

The sellers argued that “the discrepancy between the seller listed in the contract and the name of the titled owners” was only “a scrivener's error, that ['B's'] signature was not necessary” since “she was aware of the contract and participated in the transaction, that no amended contract was ever requested, and that, …they produced ready, willing and able sellers and that both ['A'] and ['B'] signed all transfer documents which remedies any defect.” The sellers provided an affidavit from “B.” indicating that she knew of the sale and “did not believe her signature to the contract was necessary based upon ['A's'] having signed the contract and on her limited role as co-trustee.”

The court explained that “[a] deed from a person not in possession, or not shown to be the owner, establishes no title.” Here, the contract was signed by “A.” as executor of the estate “who had no interest in the property and was unable to enter into a contract for the sale of the property.” The court found that the handwritten correction on the contract was “of no moment inasmuch as the contract was signed by '['A'], executor' and the rider still listed the seller as ['A'] as executor….” The court held that absent a valid contract, the purchasers were entitled to the return of their down payment and granted the purchasers' motion for summary judgment for return of the down payment.

Leonard H. Shapiro Revocable Living Trust v. Achenbaum, 605858/2016, NYLJ 1202796204192, at *1 (Sup., NA, Decided Aug. 9, 2017), Capetola, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.