WHEN THE DOWNSTAIRS TENANT CREATES A NUISANCE

If your upstairs neighbor is noisy, there are ways to deal with it. In this case, the defendant, the downstairs neighbor, may not have handled it properly. This is not just an L&T summary proceeding. This landlord went to Supreme Court and also sought and received an injunction.

25 CPW City Views LLC v. Cohen, NYLJ February 13, 2020, Date filed: 2020-01-22, Court: Supreme Court, New York, Judge: Justice James D'Auguste, Case Number: 152876/2018:

"On a preliminary injunction motion, the movant must show a probability of success on the merits, irreparable injury absent the grant of the relief, and a balance of equities in the movant’s favor (CPLR 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). “Proof establishing these elements must be by affidavit and other competent proof, with evidentiary detail” (Scotto v. Mei, 219 AD2d 181, 182 [1st Dept 1996]; see CPLR 6312 [a]). The determination of such a motion lies within the sound discretion of the trial court (see Ciminello Property Assocs. v. New 970 Colgate Ave. Corp., 173 AD3d 447, 448 [1st Dept 2019]; Scialdone v. Stepping Stones Assoc., L.P., 148 AD3d 950, 952 [2d Dept 2017]).

An injunction may be granted even where there are factual questions for trial, so long as the movant can demonstrate a probability of success on the merits (CPLR 6312 [c]; see 1234 Broadway LLC v. West Side SRO Law Project, Goddard Riverside Community Ctr., 86 AD3d 18, 23 [1st Dept 2011] [movant "need not tender conclusive proof beyond any factual dispute establishing ultimate success in the underlying action," just a clear right to the relief]; Ying Fung Moy v. Hohi Umeki, 10 AD3d 604, 605 [2d Dept 2004] [conclusive proof not necessary; likelihood of success may be found even when disputed facts]; Four Times Sq. Assoc. v. Cigna Invs., 306 AD2d 4, 5 [1st Dept 2003] ["likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is inconclusive"]). This Court finds that while the parties have submitted conflicting affidavits, injunctive relief in plaintiffs’ favor should be granted.

To assert a claim for private nuisance, the plaintiff must establish the following elements: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see also Domen Holding Co. v. Aranovich, 1 NY3d 117, 124 [2003] [nuisance is implicated by a pattern of continuity or recurrence of objectionable conduct]; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 [1st Dept 2011]; 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330, 334 [1st Dept 2010], affd as modified 16 NY3d 822 [2011]). Conduct in this context is intentional when the defendant acts with the purpose of causing the invasion, knows that it will result, or is substantially certain it will result, from his or her conduct (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 NY2d at 571; see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 334-335; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d at 43). However, not every intrusion will constitute a nuisance, the issue is “whether a defendant’s use of his or her property constitutes an unreasonable and ‘continuous invasion of [the plaintiff's property] rights’” (Ewen v. Maccherone, 32 Misc 3d 12, 14 [App Term 1st Dept 2011], quoting Domen Holding Co. v. Aranovich, 1 NY3d at 124; see also Golub v. Simon, 28 AD3d 359, 360 [1st Dept 2006]; Rodriguez-Nunci v. Clinton Hous. & Dev. Co., 241 AD2d 339, 340 [1st Dept 1997]).

Here, through the affidavits of Stempler, the Prior Tenants, Lowenkron, as well as the affidavits of the resident property managers, Lyons and Quinn, and of Friedman, the property manager for 25 CPW, plaintiffs demonstrated a pattern of recurring objectionable conduct, and that Cohen’s interference was substantial. These affidavits show that Cohen was repeatedly and significantly disturbing Stempler’s right to use and enjoy 18H by not only banging on Stempler’s floors at all hours of the day and night, but by confronting Stempler at her apartment door, 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 Stempler’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. Plaintiffs submitted copies of Cohen’s notes to her, as well as emails Cohen sent to the property managers constantly complaining about Stempler. Cohen’s behavior began when Stempler moved in, and apparently has escalated to physical confrontations.

Plaintiffs submitted the Prior Tenants’ affidavits as proof that Cohen made similar unfounded noise complaints against them, and that they refused to renew their lease because of it. Similarly, Lowenkron, the owner of apartment 17I, adjacent to Cohen’s apartment, attested that Cohen made the identical claims against tenants in 17I for noises they were making in simply using the apartment in a normal manner, such as taking a morning shower, flushing the toilet, or using the kitchen in the evening, and Cohen sent emails and left notes for those tenants (NYSCEF Doc. Nos. 48-49). 25 CPW submits proof that it expended over $4,000.00 in soundproofing 18H in August and September 2016, and that the installations met or exceeded New York City Code requirements, falling within the “Superior Soundproofing Category” for the flooring in 18H (NYSCEF Doc. Nos. 54-57).

Plaintiffs also demonstrated that Cohen’s disturbances of plaintiffs were intentional. Cohen, herself, admits that she purposely engaged in this behavior. The repeated nature of Cohen’s acts and the fact that they occurred at all hours of the day and night, often deliberately waking Stempler, establishes the third and fourth elements of the nuisance claim, that the interference was unreasonable and affected Stempler’s and 25 CPW’s rights to use and enjoy the apartment (see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 334).

In opposition, Cohen offered nothing but her own affidavit, claiming that her admitted intrusions were warranted in response to noise Stempler was making in moving around in 18H. Her complaints about Stempler’s noises, however, are not corroborated by other evidence, or even any factual detail. Indeed, her assertions that Stempler was dropping bowling balls or other heavy objects are somewhat incredible given that Stempler is elderly, has MS, and walks with a cane. The only other proof she submits, a purported audio recording of noises coming from Stempler’s apartment on June 28, 2018, as well as a video of Stempler taking cell phone photos of Cohen in the building lobby on June 9, 2018, are inadmissible because they are unauthenticated, lack any foundation and were provided only with an apparent link to a Dropbox account. In addition, it is unclear how Stempler’s actions in taking a photo of Cohen was causing her various complaints against Stempler. Lyons and Quinn, the resident property managers for the building, attested that Cohen’s complaints about Stempler lacked merit, and that she made the same unsubstantiated noise complaints about the Prior Tenants, and the neighboring tenants in both 17I and 17G, even when the apartments were vacant (NYSCEF Doc. Nos. 50-53). In fact, Lyons unequivocally stated that Cohen made numerous noise complaints, and that “in no instance were any of Cohen’s noise complaints found to have any merit whatsoever,” and that no other tenant or occupant complained of the noise that Cohen alleged was occurring (NYSCEF Doc. No. 50, Lyons aff, 8). Even if Cohen’s affidavit raised a factual issue as to whether Stempler had been making noises that were disturbing Cohen, this factual issue does not subvert plaintiffs’ establishment of a clear right to relief (see Matter of Advanced Digital Sec. Solutions, Inc. v. Samsung Techwin Co., Ltd., 53 AD3d 612, 612 [2d Dept 2008] [existence of fact issue alone does not justify denial of motion]; Sau Thi Ma v. Xuan T. Lien, 198 AD2d 186, 187 [1st Dept 1993] ["even when facts are in dispute, the nisi prius court can find that a plaintiff has a likelihood of success on the merits, from the evidence presented, though such evidence may not be 'conclusive'"] [citation omitted]).

Plaintiffs have also demonstrated irreparable injury. An injury is irreparable when it cannot be adequately compensated by money damages, or when there is no pecuniary standard to measure damages (see 67 NY Jur 2d Injunctions section 17, citing Poling Transp. Corp. v. A & P Tanker Corp., 84 AD2d 796, 797 [2d Dept 1981]; see also Di Fabio v. Omnipoint Communications, Inc., 66 AD3d 635, 636-637 [2d Dept 2009]). The movant must show that the injury is threatened and imminent (Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738, 739 [2d Dept 2010]), and what constitutes such injury depends not only on the facts but upon the discretion of the court (see Matter of Samuelsen v. Yassky, 29 Misc 3d 840, 848 [Sup Ct, NY County 2010] [Singh, J.]). Stempler is elderly and has MS, and attests that she is afraid of Cohen, afraid to leave her apartment, and fears that with the clear escalation of the conduct, Cohen may throw something more dangerous than garlic powder on her. She details the nightly assault on her quiet enjoyment of her apartment. She asserts that the constant stress Cohen has inflicted upon her has exacerbated her many serious MS symptoms (see NYSCEF Doc. No. 79, attending physician statement). This is sufficient to demonstrate irreparable injury under the circumstances of Cohen’s escalating harassment to warrant injunctive relief (see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 335; Parkmed. Co. v. Pro-Life Counselling, 91 AD2d 551, 552-553 [1st Dept 1982] [preliminary injunction issued to prevent screaming, shouting, physical and verbal threats, assault harassment, abuse and intimidation]).

As to the balance of the equities, they clearly tip in favor of granting relief to plaintiffs. The potential harm to Stempler’s health and well-being if an injunction is not issued has been demonstrated. Cohen’s harassment is persistent, disruptive, escalating and frightening Stempler in her own home. There is no apparent harm to Cohen by prohibiting her from contacting, appearing at Stempler’s door or on the 18th floor of the building, or from shouting or screaming at her, or engaging in verbal or written threats or intimidating her.

Cohen’s argument that this Court lacks jurisdiction to issue the preliminary injunction, because the relief sought is a criminal protective order, is rejected. Plaintiffs are not seeking a criminal protective order; rather, they are seeking to enjoin Cohen’s harassing behavior which is affecting plaintiffs’ enjoyment of their property in 18H. The case upon which Cohen relies, People ex rel. Bennett v. Laman (277 NY 368, 376 [1938]) is not to the contrary. The Court of Appeals in that case stated that while a court of equity will not enjoin the commission of a crime, “the criminal nature of an act will not deprive equity of the jurisdiction that would otherwise attach” so long as it seeks to protect some proper interest (id. at 376). Here, plaintiffs seek to enjoin a private nuisance that is interfering with their property rights, and not to punish Cohen for her past acts, whether criminal or not. This clearly falls within the equity jurisdiction of this Court. Thus, plaintiffs satisfy the requirements for a preliminary injunction, and their motion is granted.

Cohen’s motion for preliminary injunctive relief, however, fails to meet such requirements. Cohen fails to demonstrate a likelihood of success on the merits of her claims. In her answer, she purports to assert counterclaims for nuisance, harassment, stalking, menacing, and intentional infliction of emotional distress. She fails to make any showing that she will succeed on the merits of any of these counterclaims; in fact, she does not mention any of her claims. She asserts only that Stempler is the aggressor, and has banged on the floor of her apartment, and scraped chairs and furniture, solely to harass Cohen (NYSCEF Doc. No. 28, answering affidavit of Linda Cohen, 7). At the same time, however, she admits to her confrontations with Stempler, and that she authored and delivered the various notes to Stempler. This proof falls woefully short of her burden in seeking injunctive relief. “Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction” (1234 Broadway LLC v. W. Side SRO Law Project, Goddard Riverside Community Ctr., 86 AD3d at 23). Cohen’s attempt, in her reply papers, to submit what she claims is video proof that Stempler was stalking her, and audio proof of Stempler’s noises, fails to save her application. As discussed above, the video and audio recordings are not authenticated, provided only by an apparent link to DropBox, and lacking any foundation for the submission of such proof.

The court further notes that plaintiffs recently responded to Cohen’s apartment from June 4, 2019 through September 23, 2019. They submit a noise monitoring report for the period of June 4, 2019 to July 8, 2019, and an affidavit from an engineer, James W. Pugh, PhD, P.E. (Dr. Pugh), who states that he has expertise in evaluating the measurement of levels of sound intensity through decibel readings as indicated in the noise monitoring report (NYSCEF Doc. Nos. 76-77, 80). Dr. Pugh states that, in his opinion to a reasonable degree of scientific certainty, there is no correlation between the sound complaints from Cohen’s apartment (17H) and an increased sound decibel level in the apartment except for one instance, and, in that one instance, the elevated decibel level was minimal (NYSCEF Doc. No. 80, affidavit of James Pugh, PhD, P.E., 3). He concluded that there is a lack of acceptable correlation between Cohen’s complaints and any increased decibel readings. Even without this additional proof by plaintiffs, as discussed above, Cohen failed to demonstrate a likelihood of success on the merits of her counterclaims. Therefore, her application for injunctive relief is denied."