ARE NUISANCE TENANTS MORE OBJECTIONABLE IF IT IS LUXURY HOUSING?

Imagine this: you live in an apartment building in NYC and there is a tenant on a floor who refuses to wear a mask all the time, has a barking/accident prone dog who is sometimes unleashed in the building and maybe smokes pot (the tenant not the dog). Many would call this a typically NYC day in a typical NYC dwelling but to luxury housing, with a moratorium on evictions and where sale units go for over $2 million, supreme court is the option for breach of contract action for injunctive relief but not ejectment, and the building owner may get an injunction, especially when the tenant fails to appear (in this case it appears that the tenant is rent stabilized).

19 INDIA FEE OWNER LLC v. Miller, 2021 NY Slip Op 30816 - Kings Co. Supreme Court March 11, 2021:

"Plaintiff, 19 INDIA FEE OWNER LLC ("plaintiff"), commenced this matter by the filing of a Summons and Verified Complaint on February 16, 2021, with the instant emergency Order to Show Cause for injunctive relief and a temporary restraining order pursuant to CPLR §§ 6301, 6311 and 6313(a). Defendant, Terrell Miller ("defendant"), submitted no written opposition and failed to appear for oral argument, held on March 3, 2021, via Microsoft Teams.

Plaintiff is the owner of the building located at 21 India Street, Brooklyn, New York 11222 ("building"), wherein defendant is a tenant pursuant to a one-year lease agreement. Plaintiff seeks injunctive relief and a temporary restraining order against the defendant, based upon its contention that the defendant's conduct is offensive, objectionable, and a nuisance, which has created health-related and safety risks affecting other occupants of the building. Specifically, plaintiff alleges that the defendant (1) refuses to wear a mask over his nose and mouth or socially distance in common areas and the gym; (2) allows his dog to run "off leash;" and (3) regularly causes marijuana smoke to emanate from his apartment. Plaintiff asserts that the defendant's actions contravene paragraphs 11(A), 11(B), and 12 of the Lease, Paragraph 9 of the Rules to the Lease, as well as the Gym Rules and Non-Smoking Riders (referred collectively as "lease agreements"). Plaintiff annexed copies of the lease agreements, multiple photos showing COVID-19-related signs posted throughout common areas, and affidavits from staff members and the tenant who resides in the apartment directly beneath the defendant.

Andre Clanagan ("Mr. Clanagan"), the. Senior Community Manager of the building since August 2020, states, in his affidavit, that the defendant is consistently observed in common areas, including the gym, without a mask covering his nose and mouth despite signage related to COVID-19 safety precautions that is posted throughout the building. Mr. Clanagan further states that he has received multiple complaints about the defendant's large dog, which the defendant allows to roam about the premises without a leash. According to Mr. Clanagan, other tenants have also complained about the marijuana smoke emanating from the defendant's apartment into the tenth and eleventh floor hallway area. Mr. Clanagan explains that the defendant's conduct is the mainspring for requests from several of the residents for early termination of their leases.

The maintenance manager, Francisco Cedano ("Mr. Cedano"), attests to many of the same issues in his affidavit. Additionally, Mr. Cedano recounts a day in January 2021, when one of the tenants reported a gas smell in the building. Mr. Cedano states that the New York City Fire Department identified no issues but that the defendant later disclosed, to a National Grid representative, that he left his stove burner on for hours while smoking marijuana.

In his affidavit, Michael Ramos ("Mr. Ramos"), who provides Concierge service at the building, confirms receiving complaints about the defendant's conduct from other tenants in the building. Mr. Ramos states that he has also observed such conduct via the surveillance system, specifially, the defendant playing basketball in the gym without a mask.

Melissa Hougland ("Ms. Hougland"), who resides in the apartment directly beneath the defendant, in her affidavit, recounts multiple incidents, between September 2020 and December 2020. Ms. Hougland states that the defendant discharges saliva over his terrace when working out. According to Ms. Hougland, the saliva is carried onto her terrace by the wind. Ms. Hougland also alleges that the defendant's dog barks incessantly, urinates and defecates on his terrace, Ms. Hougland states that the dog's excrement leaks onto her terrace. Further, Ms. Hougland avers that she has smelled marijuana smoke coming from the defendant's apartment through the vent canals that run through her and the defendant's bathrooms. According to. Ms. Houghland, these issues have rendered her terrace unusable and the apartment uninhabitable.

The purpose of a preliminary injunction is to maintain the status quo and not to determine the ultimate rights of the parties (Matter of Weaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051, 1052 [2d Dept 2009]). The moving party is required to demonstrate a likelihood of success on the merits, irreparable injury absent a preliminary injunction, and a balancing of the equities in its favor (see CPLR § 6301; Cong. Mchon Chan v Machon Chana Women's Inst., Inc., 162 AD3d 635, 637 [2d Dept 2018]). "The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" (Nelson v Jannace, 248 AD2d 448 [2d Dept 1998]).

Here, plaintiff submitted sufficient evidence to demonstrate that it has a likelihood of success on the merits of its claim for a judgment declaring that the defendant has breached provisions of the lease agreements. As summarized above, there are multiple accounts from individuals with personal knowledge of the defendant's refusal to wear a mask in common areas, allowing his dog to roam without a leash, and smoking. The wearing of a mask or face covering is required under Section 66-3.2(a) of Title 10 of the New York City Rules and Regulations law, and, under Section 11(A) of the Lease. The defendant, upon signing the lease documents, agreed to comply with all present and future city, state and federal laws and regulations. Additionally, as provided in the supplemental Rules documents and Riders to the lease, the defendant agreed that he would obey gym usage rules, leash his dog, and not smoke in the building, including in his apartment.

The irreparable injury component is self-explanatory under the circumstances of this case. Plaintiff, as landlord and owner of the building, is contractually and statutorily obligated to provide habitable housing not only to the defendant, but each resident in the building. Moreover, the defendant's conduct, which involves allowing his dog to roam off-leash and his alleged refusal to comply with. COVID-19 safety measures, poses an imminent threat to the safety and well being of individuals in or about the premises.

Furthermore, the court finds that a balancing of the equities militate in favor of enjoining the defendant from violating the lease agreements and Section 66-3.2(A) of Title 10 of the New York City Rules and Regulations law. The risk of irreparable injury to the plaintiff, as landlord and owner of the building, staff, tenants and visitors on the subject property, outweigh the imposition of an injunction and temporary restraining order that merely requires the defendant to comply with his contractual obligations.

Based upon the foregoing, the instant application is granted, on default, to the extent provided herein, that a temporary restraining order is granted in favor of plaintiff, 19 India Fee Owner LLC, and against defendant, Terrell Miller."