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."

DEALING WITH A PROBLEM TENANT

400 W. 59th ST. PARTNERS LLC v. OYOLESI, 2020 NY Slip Op 34334 - NY: Supreme Court December 31, 2020:

"Plaintiff 400 West 59th Street Partners LLC is the owner and landlord of premises located at 1 Columbus Place (the building) in Manhattan and moves for a preliminary injunction: 1) directing Defendant Tobi Oyolesi to grant access to his apartment S30C in the building so that plaintiff can inspect and repair a water leak; 2) enjoining and restraining defendant Travis Lilley from entering the building; 3) enjoining and restraining Lilley from assaulting, harassing, menacing, recklessly endangering, intimidating, or threatening building residents and occupants; and 4) enjoining and restraining Lilley from creating unreasonable health or safety risks to residents and occupants of the building. Oyolesi is a tenant in the building and Lilley is his invitee.

BACKGROUND

In support of its order to show cause, plaintiff submits, inter alia, the affidavit of Genie Wright, property manager for the building. According to Wright after receiving reports of a water leak from Oyolesi's apartment in July, 2020, plaintiff attempted to investigate and repair the leak but Oyolesi refused to provide access to his apartment (NYSCEF Doc No 4 ¶¶ 4-14). Attached to Wright's affidavit is a copy Oyolesi's lease and renewal lease (NYSEF Doc No 5). Paragraph 15 of the lease allows plaintiff access to Oyolesi's apartment during reasonable hours with reasonable notice to perform inspections and repairs.

Concerning Lilley, Wright states that an investigation, including interviews with building staff showed that Lilley threatened and/or verbally abused building personnel on multiple occasions, in the months of April, May and June 2020. Wright also quotes from an email received by plaintiff from another tenant in the building concerning Lilley's conduct. Wright does not attest that he personally witnessed any of Lilley's conduct detailed in his affidavit (NYSCEF Doc No 4 ¶¶ 15-29).

DISCUSSSION

A preliminary injunction will only be issued if plaintiff demonstrates, with convincing evidentiary support, a likelihood of success on the merits, irreparable injury absent granting of a preliminary injunction, and that a balancing of equities favors its position. CPLR 6301; Nobu Next Door, LLC v. Fina Arts Housing, Inc., 4 N.Y.3d 839, 840 (2005); LAIG v. Medanito S.A., 130 A.D.3d 466 (1st Dep't 2015). And "a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in `unusual' situations, where the granting of the relief is essential to maintain the status quo pending trial of the action" (Jones v Park Front Apts. LLC, 73 AD3d 612 [1st Dept 2010]).

Access to inspect and repair

Plaintiff has shown a likelihood of success on its claim of breach of its contractual and statutory right of access to Oyelesi's apartment to inspect and repair the water leak through the affidavit of Wright. Oyelesi's affidavit in opposition is insufficient to rebut plaintiff's showing of a likelihood of success on the merits since he merely states that he discontinued using the air-conditioner that caused the water leak. Merely discontinuing use of the air-conditioner does not resolve the problem and under the terms of the lease, plaintiff has the right to repair the air conditioner to ensure that the leak does not reoccur. Moreover, as plaintiff correctly points out, Housing Maintenance Code § 27-2008 grants plaintiff the right to access Oyolesi's apartment to make repairs. Likewise, plaintiff has established irreparable injury and a balancing of the equities in its favor on its right to access claim, since plaintiff may be found to have breached its obligations to other tenants if the leak and any damage caused by the leak are not repaired.

Accordingly, that portion of plaintiff's motion seeking access to Oyolesi's apartment to inspect and repair the leak must be granted.

Enjoining Lilley's conduct

Plaintiff has not demonstrated with convincing evidence a likelihood of success on its nuisance claim concerning Lilley's conduct. In the residential landlord-tenant context nuisance is defined as "a condition that threatens the comfort and safety of others in the building" and is evidenced by "a pattern of continuity or recurrence of objectionable conduct" (Frank v Park Summit Rlty. Corp., 175 AD2d 33, 35 [1st Dept], mod on other grnds 79 NY2d 789 [1991]). While plaintiff may ultimately establish its nuisance claim based on Lilley's conduct there has been an insufficient showing of a likelihood of success on the merits because the sole affidavit offered in support of the motion is from Wright, the property manager, who does not state that he personally witnessed any of Lilley's conduct. Instead, Wright bases his allegations against Lilley on interviews with building staff and an email received from another tenant in the building. Such hearsay offered for the truth is insufficient to establish a likelihood of success on a nuisance claim (cf Water Quality Ins. Syndicate v Safe Harbor Pollution Ins., LLC, 2014 NY Slip Op 30003(U), 2014 NY Misc LEXIS 33 *12 [SC NY Co 2014] [holding "the court cannot grant the extreme remedy of a preliminary injunction based on such hearsay"]; Brownstone Agency Inc. v Distinguished Programs Grp., 2008 NY Slip Op 32131(U), 2008 NY Misc LEXIS 8992 *1 [NY Co 2008] [holding proof offered in support of a motion for a preliminary injunction "is insufficient because it consists primarily of hearsay, conjecture and/or conclusory allegations"]).

However, plaintiff very well may suffer irreparable injury in the absence of an order enjoining Lilley's conduct and a balancing of the equities are in plaintiff's favor. Lilley did not submit an affidavit in opposition and Oyolesi in his affidavit, apologizes on behalf of Lilley. Accordingly, continuation of the order imposed against Lilley enjoining him from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and requiring him to wear a mask in the building is warranted. This injunction provides "some security to the building personnel (and others) ... while merely restraining (Lilley) from continuing any unlawful or wrongful activities" (Park S. Assoc. v Blackmer, 171 AD2d 468, 469-470 [1st Dept 1991]).

CONCLUSION

Based on the foregoing it is

ORDERED that the motion is granted to the extent that defendant Oyolesi shall grant access to his apartment to plaintiff and its workers to inspect and repair the water leak and until such time as the repairs are complete; and it is further

ORDERED that the motion is granted to the extent that defendant Lilley is enjoined from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and must comply with the building's rules requiring wearing a mask; and it is further

ORDERED that the motion is otherwise denied."

TENANT HARASSMENT IN NYC

"It is illegal for building owners to force tenants to leave their apartments or surrender their rights. If you are a tenant in an apartment in the City who is being harassed by your landlord, you can get information and help.  If you are a low income tenant and/or a senior, you may be eligible for free or low-cost legal assistance."

See http://www1.nyc.gov/site/hpd/renters/harassment.page

TENANT BACKGROUND CHECKS AND "BLACKLISTING"

 

And see http://www.nysba.org/tenantscreening/ for some very helpful tips on language in stipulations when tenant is brought into court like:

Upon payment:

1. Judgment will be vacated.

2. Action is withdrawn and discontinued with prejudice.

3. Landlord agrees to expunge proceeding from tenant screening services.

The NYSBA also suggests making sure stipulations are "so ordered".

However, getting the landlord counsel to agree to such terms may be an issue. And also, additional legal work mat be required by tenant. For example, tenant may have to bring a motion to vacate judgment after payment if landlord does not take such action.

WHAT KIND OF ALTERATIONS CAN A TENANT MAKE TO PREMISES WITHOUT LANDLORD'S CONSENT

 
Compare these cases:

Britton v. Yazicioglu, 189 AD 2d 734 - NY: Appellate Div., 1st Dept. 1993:

"We agree that respondent's removal and replacement of the cabinets and refrigerator without petitioner's permission when neither was so defective as to warrant such unilateral action was a substantial violation of the "no alteration" clause of the petitioner's lease (Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612). Nevertheless, issuance of the warrant of eviction should again be stayed on condition that respondent reinstall the original cabinets within 10 days after they are made available to him by petitioner. Should petitioner fail to make the cabinets available to respondent within 20 days after service of a copy of this order with notice of entry, the judgment is vacated.

Kupferman, J., dissents in a memorandum as follows:

To replace an old refrigerator with a new one and to substitute wooden kitchen cabinets for metal ones for aesthetic reasons is an unsubstantial deviation from the obligations of tenancy (see, Rumiche Corp. v Eisenreich, 40 N.Y.2d 174).

To bottom a warrant of eviction on such flimsy grounds is to denigrate landlord and tenant law."

BENJAMIN SCOTT CORP. v. Lydia, 2007 NY Slip Op 50406 - NY: City Court, Civil Court 2007:

"Respondents argue in the alternative that if the court finds that they installed their kitchen cabinets recently, they should not have to effect a cure by taking them down and replacing them with the original or similar cabinets. Respondents contend under Rumiche Corp. v. Eisenreich (40 NY2d 174 [1976]) that installing new kitchen cabinets does not constitute waste or show that they "inflict[ed] serious and substantial injury upon the landlord." But Rumiche did not involve kitchen cabinets. And this court noted just the other week, albeit in a lease-violation proceeding unlike this one and albeit in dictum, that installing new kitchen cabinets is a substantial alteration, not a cosmetic change. (See 259 W. 12th, LLC v. Grossberg, 2007 WL 586598, at *3, 2007 NY Slip Op 50304[U], at *4 (Hous Part, Civ Ct, NY County, Feb 20, 2007] [citing Freehold Investments v. Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding, although under lease clause that does not exist in this case, that tenant made substantial alterations by, among other things, installing new kitchen cabinets]; accord Britton v. Yazicioglu, 189 AD2d 734, 735 [1st Dept 1993, mem] [citing Freehold Investments].)"

Rumiche Corp. v. Eisenreich, 40 NY 2d 174 (1976) is the leading case on this:

"In this perspective, it becomes apparent that in the case before us there was insufficient proof of any repair or alteration which could be characterized as one causing permanent or lasting injury to the premises. The apartment in issue remains a one-room studio. Its four walls are intact and remain in place. The closet and windowframe built by the tenant are merely nailed to and not built into the walls; there was no showing that either cannot be taken down and removed at minimal, if any, expense or damage. They are clearly consistent with the tenant's use of the apartment as a residence. The ceiling light fixture is a straight replacement of the old and unworkable one by a new and functioning equivalent; the addition of a modern wall switch could hardly have been more de minimis. The replacement for the defective ceiling itself, though, according to the parties' stipulation, not as thick as that required by the fire code, was of the required composition and, interestingly, no violation because of it had ever been issued by the city. More pointedly, the landlord made no showing whatsoever, whether by stipulation or otherwise, that the thickness of the falling ceiling which it replaced was any greater than the one of which it complained in this proceeding."

But the dissent stated:

"Applying these rules, in the absence of an agreement to the contrary, it is obvious that the removal of the ceiling and its reconstruction with sheetrock of insufficient thickness to satisfy the fire code constituted waste and, therefore, that the tenant breached an obligation of the tenancy. Equally clear is the fact that the actions of the tenant in making the alterations were the result of willful conduct, that is "intentional and deliberate" (Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 56). The only question remaining is whether the waste inflicted "substantial injury" upon the landlord. Alterations of a ceiling that leave the apartment in violation of the fire code could prohibit the landlord from leasing the apartment unless he bears the expense of installing an entirely new one. Resolution of whether this amounted to substantial injury raised a question of fact within the province of the trial court. The finding in favor of the landlord, having been affirmed on appeal, is beyond our power to review in the absence of legal error (Plaza Hotel Assoc. v Wellington Assoc., 37 N.Y.2d 273; Ginsberg v Yeshiva of Far Rockaway, 36 N.Y.2d 706). We observe no error of such gravity and, consequently, the order of the Appellate Division must, of necessity, be affirmed."

NOTE:

Often cited in these cases is Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612 in which the Appellate Term decision, which also had a dissent, was upheld in which the "tenant removed, and replaced with substitutes, a series of wall cabinets in the kitchen which were so physically annexed and affixed as to have long been accessory to and part and parcel of the realty. Besides installing metallic wall-covering material in the living room and bedroom, the tenant annexed to the freehold for use in connection with it, so that they cannot be removed without injury to the freehold, extensive and substantially imbedded ceiling and wall reconstructions and lighting arrangements."

TENANT BLACKLIST AND TENANT SCREENING

A common question tenants ask when facing eviction is how the process will affect their chances of re-renting.

Some websites tenants are suggested to review:

http://cwtfhc.org/tenant-blacklists-credit-reports-and-debt-collection/

http://cwtfhc.org/wp-content/uploads/2009/06/deniedhousingtenantscreeningrepoprts.pdf