NOISY NEIGHBORS IN THE BRONX

Clearly, at least in NYC, the nuisance must be substantial and unreasonable before damages are available and landlord is only obligated to take reasonable steps (and that depends on the facts).

Chapman v 2278 BPE LLC 2023 NY Slip Op 50613(U) Decided on June 23, 2023 Civil Court Of The City Of New York, Bronx County Zellan, J.  

"As to the trial, and as a threshold matter, the Court rejects defendant's argument that it owes no duty to mitigate nuisance behavior by other tenants. The First Department has recognized that a claim exists where "the alleged noise emanating from a neighboring apartment was so excessive that plaintiff [tenant] was deprived of the essential functions that a residence is supposed to provide" and defendant landlord failed to take reasonable steps to abate the neighbor's interference plaintiff's quiet use and enjoyment of the apartment. See, Armstrong v. Archives L.L.C., 46 AD3d 465, 465 (1st Dept. 2007) (internal quotations and citations omitted); see also, Brown v. Blennerhasset Corp., 113 AD3d 454, 455 (1st Dept. 2014) (affirming a cause of action by a plaintiff-tenant that "adequately alleges that [defendant-landlord] deprived plaintiff of her right to quietly enjoy her apartment by failing to take effective steps to abate allegedly excessive noise emanating from the neighboring . . . apartment"). Defendant's reliance on Cortez v. Delmar Realty Co. and related cases are wholly inapposite and misplaced as Cortez and its progeny all concern physical assaults by neighbors in which the courts found that "it cannot be said that the landlord had the ability or a reasonable opportunity to control the assailant." 57 AD3d 313, 313 (1st Dept. 2008). That is not this case. As the Court noted in denying defendant's pre-trial motion to dismiss this action, plaintiff's complaint stated a claim for which, if plaintiff could establish the claim at trial, relief could be granted—i.e., that defendant allegedly breached its obligations pursuant to the parties' lease and/or breached the common law warranty of habitability by failing to take reasonable measures to mitigate excessive noise by other tenants. Decision and Order dated Mar. 20, 2023, at 1, citing Zarate v. A&E Tiebout Realty LLC, 78 Misc 3d 1239(A) (Civ. Ct., Bronx Co. 2022), stay denied, 2023 NY Slip Op 67716(U) (App. Term, 1st Dept. May 31, 2023) (discussing landlord's obligations to mitigate nuisance behavior by other tenants); see also 3021 Ave. I LLC v. Starker, 76 Misc 3d 1222(A), *5 (Civ. Ct. Kings Co. 2022) ("Noise from neighbors can conceivably entitle a tenant to" relief from their landlord in New York.).

Defendant further argues that the only damages available to plaintiff in a case such as this would be in the form of rent abatement, and that because plaintiff's rent is heavily subsidized (in plaintiff's case 100% of his rent) through a public assistance program, he is precluded from an award of any damages, even if he were able to prove his prima facie case. The Court disagrees. Although reported cases discussing potential breaches by a landlord principally discuss remedies framed as abatements of rent (and often thought of as reducing an existing responsibility for unpaid rent), there is no indication in reported case law (either in defendant's submissions of the Court's own research) that an abatement of rent is exclusive of other forms of monetary damages for an alleged breach of a tenant's right to use and enjoy their property and that plaintiff is foreclosed from seeking such monetary damages merely by virtue of his participation in a rent subsidy program. Indeed, closing the courthouse door to plaintiff and those similarly situated because he receives public rental assistance would be repugnant to the public policy the State. Accordingly, the Court will not preclude relief, to the extent plaintiff is entitled to any, based upon the source of plaintiff's rent payments.[FN3]

That said, the full record developed at trial does not establish any basis for relief. As stated, for plaintiff to be entitled to damages, plaintiff must first prove (1) that the alleged noise from the neighboring apartment was so excessive as to deprive plaintiff of the essential functions that a residence is supposed to provide, and (2) that defendant landlord failed to take reasonable steps to abate the neighbor's interference plaintiff's quiet use and enjoyment of the apartment. Plaintiff failed to meet his burden at trial on either of these issues.

While unreasonable noise can support a claim, such claim does not include "noises that are incidental to normal occupancy, including heavy footsteps, snoring, and using a dishwasher." Brown, at 454. Courts have cited Brown and noted that "excessive noise caused by the persistent running, jumping and playing of defendants' children does not rise to the level of substantial and unreasonable interference with plaintiffs' enjoyment of their apartment because it is incidental to normal occupancy in an apartment building." Bacarach v. Board of Mgrs. of the Brooks-Van Horn Condominium, 76 Misc 3d 1221(A), *2 (Sup. Ct., New York Co. 2022). See [*3]also, 3021 Ave. I LLC, at *5. Upon careful review and consideration of plaintiff's evidence of the alleged disturbances to his quiet use and enjoyment, including particularly the recordings presented at trial, the Court finds that the alleged noise simply does not rise to the level of substantial and unreasonable interference with plaintiff's use and enjoyment required to sustain such a claim. This is not to say that plaintiff is insincere when he claims the acute disturbance he personally experienced on these occasions, but the standard for relief must be both objective as well as subjective.

Additionally, even if the level of disturbance proved in Court was more substantial, plaintiff would still not be entitled to damages as defendant took reasonable steps to abate the neighbor's alleged interference with plaintiff's quiet use and enjoyment of the apartment, if any. In stark contrast to the defendants in Zarate, defendants in the instant action offered competent witness testimony and a substantial amount of authenticated documentary evidence detailing repeated and sustained efforts to address plaintiff's concerns. Neither the common law nor the lease agreement necessarily requires that a landlord commence eviction proceedings (although it is conceivable such measure could be required depending on the severity of the nuisance) against an alleged offending tenant. Rather, a landlord must engage in good faith efforts to mitigate the alleged nuisance that are reasonable under the circumstances, which the Court finds they were in this instance."

FAMILY EVICTION - IN SURROGATE'S COURT.

An attempt was made to resolve this dispute between the decedent's daughter, her half brother and another sibling distribute. But apparently, court involvement was required.

Estate of Ford

Date filed: 2023-06-13

Court: Surrogate's Court, Bronx

Judge: Surrogate Nelida Malave-Gonzalez

Case Number: 2019-1835/C:

"Kenyahbba T. Ford (the “Petitioner”) is the decedent’s son and the estate’s administrator. He brought this miscellaneous proceeding by order to show cause seeking, inter alia, (i) to eject a daughter of the decedent, Tonja Meyers (“Tonja”), and the decedent’s granddaughter, SheMeiyah Meyers (“Shemeiyah”) (collectively, Tonja and SheMeiyah are the “Respondents”) from the decedent’s home located at 2704 DeWitt Place, Bronx, New York (the “Premises”); and (ii) a money judgment in the sum of $47,600.00 against the Respondents for their use and occupancy of the Premises. The decedent died on July 21, 2019. At the time of her death she was domiciled at the Premises. The decedent was survived by three distributees — the Petitioner, Tonja and another daughter, Niykebba L. Ford, who consents to the relief requested by the Petitioner herein. The estate’s only assets are the Premises and a bank account containing approximately $5,000.00.

The order to show cause commencing this proceeding was returnable on April 27, 2023. According to an affidavit of service filed by the Petitioner, an attorney certified copy of the order and its supporting papers were served upon each Respondent by overnight mail at the Premises on April 17, 2023. Those supporting papers included, inter alia, the petition; a copy of the Premises’ deed showing that the realty was owned by the decedent at the time of her death; and a ten-day “notice to quit” with an affidavit showing its service upon each Respondent.

The petition alleges that the Premises is encumbered with two outstanding mortgages, one of which is in foreclosure. It further asserts that the interests of the estate would be best served by a sale of the Premises so that the mortgages can be satisfied, the estate’s equity in the Premises can be preserved, the estate’s administration and funeral expenses can be paid, and the distributees can receive their respective inheritances. According to the petition, the house needs to be vacant to facilitate a sale.

It is further averred that prior to this proceeding the Petitioner, in his individual capacity, attempted to resolve this matter by offering to buy out Tonja’s interest in the Premises for a fair market value and provide the Respondents with financial assistance to move out. The Respondents, however, allegedly declined the offer and have elected to remain in the Premises since the decedent’s death, without paying use and occupancy.

On the return date of the order to show cause, the Petitioner’s counsel and Tonja appeared on the court’s virtual platform. SheMeiyah did not appear. The court directed that by May 19, 2023 Tonja must either hire an attorney or serve and file her objections, in proper form, and adjourned the matter to May 25, 2023.

Tonja did not hire an attorney or serve and file objections as directed. On May 25, 2023 the Petitioner’s counsel and Tonja again appeared virtually before the court. At that time, Tonja indicated that she would not be obtaining counsel. Tonja also confirmed that only she and SheMeiyah resided at the Premises. The court gave Tonja one more opportunity to serve and file objections, in proper form, and set a deadline of June 2, 2023 for her to do so. The file was then marked “final adjournment” and placed on the court’s June 6, 2023 calendar.

Tonja did not serve and file objections in proper form by the June 2nd cutoff date. On June 6, 2023, the Petitioner’s counsel, the Petitioner and Tonja appeared on the court’s virtual platform. After affording both sides an opportunity to be heard, the matter was marked submitted for a determination.

As an initial matter, the court has subject matter jurisdiction to grant the relief sought in this proceeding as it clearly relates to decedent’s affairs and the estate’s administration (In re Estate of Piccione, 57 NY2d 278 [1982]; NY Const, art VI, §12; SCPA 201, 202). Furthermore, the request for ejectment is appropriate, notwithstanding that Tonja is a distributee. While she is an owner of the Premises, her rights are subject to the rights granted in the Petitioner, as the estate’s administrator, to take immediate possession of the asset so it can be preserved and made productive to those with a beneficial interest therein (Estate of Grad, 2002 NYLJ 1513 [Sur Ct, Suffolk County 2002]).

In contrast, SheMeiyah has no ownership interest in the Premises. She resides there as a licensee. While courts have been split as to whether a predicate notice of termination is required in an ejectment action, here the Petitioner served SheMeiyah with a ten-day notice terminating her license (see Fazio v. Kelly, 2003 NYLJ LEXIS 1706 [Civil Court, Richmond County 2003]; RPAPL 713[7]). Further, this court has sufficient general equitable jurisdiction to grant the relief sought against SheMeiyah (Matter of Burstein, 153 Misc. 515, 519 [Sur Ct, Kings County 1934]; In re Estate of Piccione, 57 NY2d 278 [1982]).

To date, neither Respondent has filed objections, nor have they requested leave for additional time to file objections in proper form. In the absence of any filed objections, the petition is due proof of the facts stated therein (SCPA 509). Moreover, it appears to the court that it is in the distributees’ best interests to have the Premises promptly sold so they can preserve their equity in the realty, pay administrative expenses, and receive their distributive shares of the net estate. As the Respondents continued occupation of the Premises would prevent the expeditious sale of the Premises, to the estate’s detriment, the Petitioner’s request for an ejectment order is granted.

Accordingly, it is hereby ordered that the Petitioner, as the administrator of the estate of Evelyn Ford, also known as Evelyn Meyers Ford, recover possession of the Premises from the Respondents. A copy of this order shall be transcribed and docketed in the Bronx County Clerk’s office. On a date that is no earlier than sixty days from the date hereof a sheriff or marshal of the County of Bronx, upon receipt of a certified copy of this order and its transcript, shall enter upon the Premises and eject the Respondents therefrom and put the Petitioner into possession of the Premises, and this order shall be executed by said sheriff or marshal as if it were an execution for delivering possession of the Premises.

The Petitioner’s application for a money judgment against the Respondents, however, is denied without prejudice. On this state of the record, the court is not satisfied that the Petitioner has established the amount, if any, of the fair use and occupancy owed to the estate by the Respondents. Furthermore, such relief should be sought in an accounting proceeding brought after the realty is sold, not at this juncture. Therefore, the court directs the Petitioner to file an account and a petition for its judicial settlement, and cause a citation to issue thereon, within thirty days after the Premises’ sale."

NEIGHBOR DISPUTES - THROWING THE KITCHEN SINK

Apparently, to this court, in the extreme neighbor dispute in a co-op, the proper cause of action is private nuisance and intentional infliction of emotional distress.

Mrishaj v. Moore, Date filed: 2023-06-12, Court: Supreme Court, New York, Judge: Justice Lucy Billings, Case Number: 156029/2022:

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

ATTORNEYS AND CREDIT CARD PAYMENTS

New York State Bar Association Committee on Professional Ethics Opinion 1258 (06/05/2023) Topic: Credit card fees as an “expense”

 Digest: A lawyer may pass on a merchant processing fee to clients who pay for legal services by credit card provided that both the amount of the legal fee and the amount of the processing fee are reasonable, and provided that the lawyer has explained to the client and obtained client consent to the additional charge in advance. Rules: 1.5(a)-(b) FACTS: 1. The inquirer accepts credit card payments for payment of legal services. Credit card companies charge the inquirer between 3.5% and 3.75% of the invoiced amount as a merchant processing fee.

QUESTION: 2. May a lawyer pass on the merchant processing fee to the client as an expense?

OPINION: 3. New York lawyers may allow their clients to pay for legal services by credit card provided: “(i) the amount of the legal fee is reasonable; (ii) the lawyer complies with the duty to protect the confidentiality of client information; (iii) the lawyer does not allow the credit card company to compromise the lawyer’s independent professional judgment on behalf of the client; (iv) the lawyer notifies the client before the charges are billed to the credit card and offers the client the opportunity to question any billing errors; and (v) in the event of any dispute regarding the lawyer’s fee, the lawyer attempts to resolve all disputes amicably and promptly and, if applicable, complies with the fee dispute resolution program set forth in 22 N.Y.C.R.R. Part 137.” N.Y. State 1050 ¶5 (2015). 4. Rule 1.5(a) of the New York Rules of Professional Conduct (“Rules”) prohibits charging a client “an excessive fee or expense” (emphasis added) and sets forth a non-exclusive list of factors to consider in determining whether a fee is excessive. A merchant processing fees that a lawyer wishes to charge back to a client who pays for legal services by credit card is an “expense” within the meaning of Rule 1.5(a). Rule 1.5(b) requires a lawyer to advise the client in writing “fee and expenses for which the client will be responsible.” 5. Provided the attorney complies with Rule 1.5, nothing prohibits a lawyer from increasing the invoiced amount for legal services by an amount equal to the merchant processing fee incurred when accepting credit card payments.

Thus, in N.Y. State 1050 (2015), in addition to allowing 2 the inquiring lawyer to pass on to a client the credit card company’s processing fee for payment of the firm’s advance payment retainer by credit card, we allowed the lawyer to charge an additional nominal amount to compensate for the additional merchant processing fee incurred on that processing fee up-charge. We stated: A lawyer may, as an administrative convenience, charge a client a nominal amount over the actual processing fees imposed on the lawyer by a credit card company in connection with the client’s payment by credit card of the lawyer’s advance payment retainer, as long as (i) the client receives disclosure of the up-charge and consents to it before the lawyer imposes it, (ii) the amount of the upcharge is nominal, and (iii) the total amount of the advance payment retainer and the processing fees charged (including the up-charge) are reasonable under the circumstances. N.Y. State 1050, ¶18. The same principles apply here with respect to merchant processing fees assessed on legal fees that a client pays by credit card after the advance retainer. 6. Ethics opinions issued by bar associations in other states have reached similar conclusions on this issue. See, e.g., Illinois Op. 14-01 (2014); D.C. Op. 348 (2009). CONCLUSION: 7. A lawyer may pass on a merchant processing fee to clients who pay for legal services by credit card provided that both the amount of the legal fee and the amount of the processing fee are reasonable, and provided that the lawyer has explained to the client and obtained client consent to the additional charge in advance.

AFC AND SUBSTITUTED JUDGMENT AND PARENTAL ALIENATION

AFC is attorney for the child....A quick review of psychiatric studies shows that there is a general consensus that parental alienation results in many long-term, negative consequences for a child. Depression, anxiety, poor self-esteem, lack of trust in relationships, and self-defeating behavior are just some of the deleterious consequences. And one can argue, that is a serious harm to the child.

Thompson v. Thompson, --- A.D.3d ---, --- N.Y.S.3d --- (Fourth Dept. 2023)(2023 WL 3160145)(Apr 28, 2023):

"We also reject the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record establishes that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children (see Matter of Vega v. Delgado, 195 A.D.3d 1555, 1556, 145 N.Y.S.3d 907 [4th Dept. 2021]; Matter of Grabowski v. Smith, 182 A.D.3d 1002, 1004, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020]; Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680-1681, 12 N.Y.S.3d 684 [4th Dept. 2015])."

A GREY DIVORCE WITH NO SPOUSAL SUPPORT

In this case, the parties are senior citizens, estranged for 27 years after only a few months of living together.

Ruby W. v. Cleveland W., Date filed: 2023-04-28, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Mendelson-Toscano, Case Number: F-08836-22:

"A married person is chargeable with his or her spouse’s support. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Young v. Young, 186 A.D.3d 719, 721 (2d Dep’t 2020); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019). Where married parties have not entered into an agreement of their own, a spouse may petition the family court for a spousal support award. See N.Y. FAM. CT. ACT §§412, 422(a) (McKinney’s 2023). A hearing must be held after which there must be a finding that a husband or wife is possessed of sufficient means, or able to earn such means, justifying spousal support. See N.Y. FAM. CT. ACT §442 (McKinney’s 2023); Young, 186 A.D.3d at 721.

Family Court Act (hereinafter “FCA”) §412 contains a formula for computing spousal support based upon the parties’ combined income.1 See N.Y. FAM. CT. ACT §§412(3), (4), (5) (McKinney’s 2023). A support magistrate may depart from the guidelines amount where it is found that such sum is unjust or inappropriate. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023). In its determination, a support magistrate must contemplate the factors delineated within FCA §412(6)(a). See N.Y. FAM. CT. ACT §§412(6)(a). A support magistrate must issue a written order with, or set forth on the record, the factors it considered and the reasons for its departure from the guidelines amount. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023).

Spousal support awards are non-durational. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Levy v. Levy, 65 A.D.3d 1295, 1296 (2d Dep’t 2009) (unlike maintenance in context of matrimonial action, Family Court Act does not provide durational limit on spousal support). Such awards terminate by operation of law upon the parties’ divorce or the death of either party, or by the parties’ written or oral agreement in open court. See N.Y. FAM. CT. ACT §412(10) (McKinney’s 2023).

The evidence showed that Mrs. W is 70 years old and Mr. W is 66 years old. The proof established that the parties were married on January 26, 1996 and have one emancipated child together. The evidence showed that the parties’ nuptials and cohabitation occurred almost three decades ago and was short-lived with little or no communication thereafter until the instant petition’s filing.

Both parties’ earning capacities and financial landscapes appear bleak with no relief in sight. The proof established that Mrs. W lives on what she characterized as a “fixed income.” The evidence showed that Mr. W has a part-time job working in the shelter system, earning $18.26 an hour. The proof established that Mr. W will receive Social Security Disability benefits in the amount of $466.00 monthly, commencing April, 2023. Mrs. W failed to establish that Mr. W’s ability to earn is anything more than what Mr. W has shown it to be.

The evidence showed that Mr. W was incarcerated for almost a decade. Moreover, the proof established that the petition’s filing was a total shock to Mr. W, who testified that he has been trying to divorce Mrs. W for years and was frustrated by her lack of cooperation. Thus, the Court finds that Mr. W has not purposefully underemployed himself or hidden income or assets in an effort to thwart the proceedings. See e.g. Justin v. Justin, 120 A.D.3d 1417, 1418 (2d Dep’t 2014) (finding court properly declined to impute income where father’s choice not to re-enlist in Army not undertaken to reduce or avoid child support obligation); Cordero v. Olivera, 40 A.D.3d 852, 853 (2d Dep’t 2007) (upholding trial court’s credibility determination that parent had not intentionally underemployed herself).

Taking into consideration the totality of the evidence presented at trial and applying it to the law, the Court finds that Mr. W is not possessed of sufficient means, or able to earn such means, to justify an award of spousal support to his wife of 27 ½ years who has been estranged from him for the last 27 years. Accordingly, the Court declines to award spousal support to Mrs. W.2 See e.g. Hutchinson v. Hutchinson, 188 A.D.3d 1208, 1208 (2d Dep’t 2020) (“the court’s spousal support award was appropriate based upon a consideration of the parties’ respective circumstances at the time of their presentation to the Family Court”); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019) (upholding deviation from presumptive amount where husband was incarcerated during marriage, parties lived apart for 13 years preceding support proceeding, and had limited contact after his release); Costigan v. Renner, 76 A.D.3d 1039, 1040 (2d Dep’t 2010) (affirming supreme court’s denial of spousal support where court took statutory factors into account, including parties’ less than three years cohabitation); Zaky v. Andil, 81 A.D.3d 842, 843 (2d Dep’t 2011) (upholding support magistrate’s decision based upon particular circumstances of case).

Assuming arguendo that the Court found otherwise, in light of the parties’ ages and health,3 present and future earning capacity, short duration of their cohabitation prior to separation, and remote proximity of the parties’ pre-support proceedings household, the Court would likewise decline to order Mr. W to pay spousal support to Mrs. W."

ON PRO BONO WORK