NEIGHBOR DISPUTE - A SUIT AGAINST NOISY NEIGHBORS AND CO-OP

O'HARA v. BOARD OF DIRECTORS OF THE PARK AVE. & SEVENTY-SEVENTH ST. CORP., 2022 NY Slip Op 3872 - NY: Appellate Div., 1st Dept. 2022:

"Plaintiffs allege that unreasonable noise and stomping by the Lazars' children in the upstairs apartment directly above them adversely affected plaintiff Robert O'Hara, Jr.'s health and created structural cracks in the walls and ceiling of their unit. They allege further that the Co-op defendants failed to investigate and address the noise and structural damage.

The allegations concerning the noise are sufficient to state a cause of action for nuisance against the Lazars, as are the allegations of physical damage to the walls and ceiling (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]).

The cause of action for breach of contract against the Lazars was correctly dismissed, since there is nothing in the Lazars' proprietary lease that indicates that plaintiffs were intended third-party beneficiaries of the lease (see Ran v Weiner, 170 AD3d 425, 425-426 [1st Dept 2019]).

The complaint alleges that the Co-op board's refusal to investigate plaintiffs' concerns about the noise constituted unequal treatment and a dereliction of the directors' duties. However, because it does not allege that, in refusing to investigate, the directors were acting outside their official capacity, the complaint fails to state a cause of action for breach of fiduciary duty (Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 442 [1st Dept 2009]; see also Frankel v Board of Mgrs. of the Cent. Park W. Condominium, 177 AD3d 465, 467 [1st Dept 2019]).

The complaint states a cause of action for breach of article I, paragraph first of the proprietary lease, which requires the Co-op to maintain all structural parts of the building, including the apartment's walls and ceilings. To the extent the Co-op defendants contend that under the exculpatory clauses of the proprietary lease, they are not responsible for breaches by other shareholders of the cooperative, this argument is unavailing. The owner of a multiple dwelling has a nondelegable duty to maintain the building in good repair under Administrative Code of the City of New York § 27-2005(a), which applies irrespective of the source of the damage to the structural elements of the building.

The complaint fails to state a cause of action for breach of article I, paragraph second of the proprietary lease, because it does not allege that the Co-op failed to provide any of the enumerated services required to maintain the building in first-class condition. To the extent the claim is predicated on the Lazars' alleged violation of the house rules, it is barred by article II, paragraph fifth, which shields the Co-op from liability to one shareholder for another shareholder's violation of the rules (see e.g. Ran, 170 AD3d at 426).

The complaint fails to allege an eviction or abandonment sufficient to support a claim for breach of article I, paragraph seventh of the proprietary lease, which incorporates the covenant of quiet enjoyment (see Iken v Bohemian Brethren Presbyt. Church, 162 AD3d 594, 595 [1st Dept 2018]).

As to the claim for breach of the warranty of habitability, the allegations concerning the noise do not establish that the noise was so excessive that it deprived plaintiffs of the essential functions of a residence (see Kaniklidis v 235 Lincoln Place Hous. Corp., 305 AD2d 546, 547 [2d Dept 2003]). However, the allegations concerning the Co-op defendants' refusal to repair the structural cracks in the ceiling and walls state a claim for breach of the warranty, since structural cracks could give rise to a hazardous condition of the building (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327-328 [1979], cert denied 444 US 992 [1979])."

WHEN SEEKING DISCOVERY AND THE LITIGANT IS AN ATTORNEY

Yesterday I posted an earlier decision on this matter which also had a prior discovery issue on expert witnesses. This matter addresses the issue of privileged emails.

Theroux v Resnicow 2021 NY Slip Op 50622(U) Decided on July 7, 2021 Supreme Court, New York County Lebovits, J.:

"This action arises from an ongoing quarrel among neighbors, plaintiff Justin Theroux and defendants Norman and Barbara Resnicow, who live in a Manhattan co-op apartment building. Norman Resnicow is a senior equity partner at the law firm of Fox Horan & Camerini LLP. This court previously ordered defendants to produce to plaintiffs all responsive and non-privileged emails that Resnicow sent from his Fox Horan email account, and to provide a privilege log for those responsive Fox Horan emails that defendants were withholding on the ground of the attorney-client or spousal privileges. (See Theroux v Resnicow, 2020 NY Slip Op 51489[U], at *2, *5 [Sup Ct, NY County Dec. 16, 2020].)

This decision concerns seven emails between Norman Resnicow and other Fox Horan attorneys on Resnicow's firm email account. Defendants withheld those emails as shielded by the attorney-client privilege. Plaintiff disputed the claim of privilege and sought a ruling on the dispute from this court. This court previously notified the parties by email of its ruling that six of the emails (between Resnicow and a lawyer who was then an associate at the firm) were not privileged and must be produced, without providing the court's full reasoning for its conclusion. This decision explains the court's determination as to those six emails. In addition, the decision also resolves the parties' disagreement about the seventh email. The court concludes that the [*2]seventh email (between Resnicow and a senior firm lawyer) also is not privileged and must be produced.

DISCUSSION

The attorney-client privilege shields from disclosure communications (i) between a client and attorney, (ii) intended to be, and actually kept, confidential, and (iii) sent for the purpose of obtaining or providing legal advice. (See Ambac Assur. Corp. v Countrywide Home Loans, Ins., 27 NY3d 616, 623-624 [2016], citing CPLR 4503 [a] [1].) The privilege exists to enable clients to confide fully and freely in their attorneys, thereby furthering their effective representation. (See Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62, 67-68 [1980].)

At the same time, because the attorney-client privilege impedes the "truth-finding process" (Matter of Priest, 51 NY2d at 68), it must be narrowly construed. (See Spectrum, 78 NY2d at 377-378, citing Rossi v Blue Cross & Blue Shield of Greater New York, 73 NY2d 588, 593 [1989].) Determining whether a given communication comes within the scope of the privilege "is necessarily a fact-specific determination" (id. at 378), in which the burden is on the party asserting its protection to prove each element (see Ambac, 27 NY3d at 624).

As noted above, six of the emails at issue here are communications between Norman Resnicow and Eric Fidel, Esq., then a junior associate at Fox Horan. The seventh email is between Resnicow and William Brodsky, Esq., a Fox Horan counsel.[FN1] The emails themselves have not been provided to the court for in camera review; the parties have instead rested on their legal arguments and the applicable entries in defendants' privilege log. This court finds those materials sufficient to enable it to render the necessary privilege determinations.

This court concludes that defendants have not established that an attorney-client relationship existed between Resnicow and Fidel or between Resnicow and Brodsky, or that the emails at issue were sent for the purpose of obtaining or providing legal advice. Defendants thus have not shown that any of the seven emails at issue is shielded by the attorney-client privilege. (See e.g. Nacos v Nacos, 124 AD3d 462, 462-463 [1st Dept 2015] [holding that the privilege does not apply if movant does not establish that an attorney-client relationship existed among the parties.) The emails must be produced to plaintiff.

I. Whether the Emails at Issue Were Sent Between Attorney and Client

As its name reflects, the attorney-client privilege protects only communications that are sent in the context of an established attorney-client relationship. (See Priest, 51 NY2d at 68.) Although the relationship between attorney and client is contractual, a formal written agreement or payment of fees is not required. (See Pellegrino v Oppenheimer & Co., 49 AD3d 94, 99 [1st Dept 2008].) Rather, absent a written agreement, a court must consider "the words and actions of [*3]the parties to ascertain if an attorney-client relationship was formed." (C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [3d Dept 1995].) In conducting this assessment, an attorney's general statement that a party was a client, without more, is insufficient to demonstrate the relationship. (See Priest, 51 NY2d at 70).

Defendants have not shown that Resnicow entered into an attorney-client relationship either with Fidel or with Brodsky. There are no formal indicia of an attorney-client relationship, such as a letter of engagement or a retainer agreement. No fees were paid. Neither Fidel nor Brodsky has ever appeared on behalf of Resnicow in this action or any related matter. Neither Fidel's name nor Brodsky's name is on any of defendants' filings in this action. Defendants' privilege log does not identify any fact or document that might indicate that an attorney-client relationship existed. Nor, for that matter, can this court imagine a state of the world in which Fidel or Brodsky could be subjected to a legal-malpractice claim arising from assistance they provided Norman Resnicow—as would be possible were Fidel or Brodsky indeed acting as Resnicow's attorney. (See Cusack v Greenberg Traurig, LLP, 109 AD3d 747, 747 [1st Dep't 2013] [affirming dismissal of legal-malpractice claim for lack of an attorney-client relationship].)

In short, defendants have not offered any independent fact, beyond Norman Resnicow's own conclusory statements, to demonstrate that an attorney-client relationship did exist between Resnicow and Fidel or Resnicow and Brodsky. (See Priest, 51 NY2d at 70 [requiring introduction of independent facts to prove attorney-client relationship].)

Defendants misplace their reliance on 1050 Tenants Corp. v Lapidus (12 Misc 3d 1118 [Civ Ct, NY County 2006]). Lapidus treated work by a law-firm associate on a partner's personal litigation with a third party as protected by the attorney-client privilege (albeit finding a waiver of the privilege on the facts of the case). But the privilege-related dispute in Lapidus centered around a formal settlement agreement that had been signed by the associate for the partner when the associate was appearing in court on the partner's behalf. (See id. at 1120-1124.) Neither of those circumstances is present here.

In Stock v. Schnader Harrison Segal & Lewis LLP (142 AD3d 210 [1st Dept 2016]), also cited by defendants, the communications at issue were between attorneys at a firm and their law firm's in-house counsel, concerning the attorneys' ethical obligations in representing a firm client. Defendants have not introduced facts establishing that either Brodsky or Fidel was acting as in-house counsel for Fox Horan in speaking with Norman Resnicow; or that Resnicow was somehow otherwise a client of the firm.[FN2] (Cf. Stock, 142 AD3d at 213-215.)

No attorney-client relationship existed between Norman Resnicow and the other Fox [*4]Horan attorneys whom he emailed. The privilege thus does not shield the seven emails at issue.

II. Whether the Emails at Issue Were Sent to Get or Give Legal Advice

Although this court's conclusion that Norman Resnicow was not the client of either Fidel or Brodsky is sufficient to resolve the attorney-client-privilege issue here, for clarity the court addresses the additional question whether these emails sought legal advice. The privilege may apply to client communications with an attorney only if the communications were made for the purpose of obtaining or providing legal advice. (See Rossi, 73 NY2d at 593.)

Defendants have not established that Resnicow's emails with Fidel were for that purpose. (See Spectrum, 78 NY2d at 379-380 [discussing what it means to seek legal advice].) This was not an instance in which a client confided in his attorney to get the attorney's professional advice, assistance, or input. Rather, the record indicates that Fidel, a far more junior attorney than Resnicow, was simply performing a specific assigned task for him. In essence, Resnicow was obtaining free background research from a firm associate on a personal legal matter. Indeed, defendants' privilege log regarding their communications references only basic legal concepts, none of which specifically related to and integrated the facts of this case—as one would expect were Fidel providing legal advice to Resnicow.[FN3]

With respect to the Resnicow-Brodsky email, defendants suggest that Resnicow was engaging in a more substantive conversation with Brodsky—a much more senior and experienced lawyer than Fidel—about Resnicow's litigation strategy in this action. And the timing of the Brodsky email, relative to the Fidel emails, is consistent with this suggestion. But defendants have not provided the email itself for this court's review; and inference and conjecture about the email's substance based on the limited information appearing in the privilege log is not enough. Defendants have not, on this record, met their burden to show that this element of the privilege has been satisfied. Regardless, whether or not the email from Resnicow to Brodsky was sent for the purpose of obtaining legal advice, for the reasons discussed above it was not sent between client and attorney. It therefore still would not come within the privilege.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that defendants must within 14 days produce to plaintiff the email between Norman Resnicow and William Brodsky that defendants previously withheld as privileged.

DATE 7/7/2021 Footnotes

Footnote 1:Defendants' privilege log suggests, but does not expressly indicate, that the emails were sent to and from Fidel and Brodsky on their Fox Horan email accounts.

Footnote 2:Similarly, in United States v Rowe (96 F3d 1294, 1296 [9th Cir 1996]), the court rested its ruling about the existence of an attorney-client relationship on the conclusion that the associates in that case were "assigned . . . to perform services on behalf of the firm," and therefore "were, effectively, in-house counsel." That is not the case here.

Footnote 3:Plaintiff also argues that the privilege does not shield the Resnicow-Fidel emails for the additional reason that Resnicow's secretary at Fox Horan was copied on two of the six emails. Given this court's determination on multiple other grounds that the Resnicow-Fidel emails must be produced, the court need not and does not reach this issue.

MORE ON "BAD NEIGHBORS" - THE HIGH COST OF LITIGATING WITH THE RICH AND FAMOUS

Theroux v. RESNICOW, 2021 NY Slip Op 21146 - NY: Supreme Court May 27, 2021

"Pryor Cashman LLP, New York, NY (Bryan T. Mohler of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow.

GERALD LEBOVITS, J.

Plaintiff Justin Theroux and defendants Norman and Barbara Resnicow are neighbors in a Manhattan co-op apartment building. This action arises from the years-long quarrel between them. Theroux has alleged that the Resnicows' course of conduct during that quarrel constituted a private nuisance that harmed the value of Theroux's apartment; and he has also alleged that conduct by Norman Resnicow impaired and delayed renovation projects occurring on the premises of Theroux's apartment, forcing Theroux to incur added renovation costs.

As part of discovery in the action, the Resnicows have on multiple occasions asked Theroux to specify further the nature and extent of each element of his claimed damages. Theroux thus far has refused. Theroux's position has been, in essence, that providing the requested specificity likely would entail obtaining the opinion of an expert, and that it would be premature to require Theroux to obtain and disclose an expert's opinion about his damages in the middle of paper discovery. This court previously accepted this argument at multiple status conferences based on the status of discovery at that time. (See e.g. NYSCEF No. 311 at 2-3 [September 2020 status conference order].)

At the most recent discovery conference in this action, held on May 17, 2021, this issue relating to Theroux's claimed damages recurred. This court concluded at the conference that given the progress made in discovery, it would now be appropriate to set a deadline for Theroux to provide an expert disclosure identifying in more detail the different components (and extent) of Theroux's damages; and that the disclosure should be provided by the time Theroux files his note of issue.^[1]

That aspect of the expert-discovery issue is comparatively straightforward. The difficulty lies instead in the question whether this court may, under CPLR 3126, impose consequences at the summary-judgment stage for any failure by Theroux to meet that expert-report deadline. At this court's request, the parties submitted letter briefing on this issue. (See NYSCEF Nos. 382-386.) This court concludes that a court retains discretion to impose discovery sanctions at summary judgment for failure to comply with court-ordered deadlines for expert discovery. Under the circumstances of this action—particularly the extent to which itemization and specification of Theroux's damages has now been a contested issue in discovery for well over a year—this court further concludes that if Theroux has not provided an expert disclosure regarding damages by the time he files his note of issue, he may not rely on a damages expert at summary judgment.

DISCUSSION

I. Whether This Court May Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

Whether this court may preclude Theroux from offering an expert affidavit at summary judgment depends on the interplay among three CPLR provisions. CPLR 3101(d)(1)(i), governing expert disclosures, does not itself set a deadline for when those disclosures must be made. But this court has authority to issue orders setting expert-discovery deadlines beyond those imposed by the CPLR; and under CPLR 3126, this court has discretion to impose a range of sanctions for failure "to obey an order for disclosure." CPLR 3212 provides, though, that "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101(d)(1)(i)] was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].)

The question, then, is whether this clause of CPLR 3212(b) eliminates this court's discretion under CPLR 3126 to preclude a party from submitting expert evidence at summary judgment due to the party's failure to comply with a court-ordered deadline for expert discovery. This court concludes that the language of CPLR 3212(b) does not oust that discretion.

A. The Text of the 2015 Amendment to CPLR 3212(b)

The Legislature amended CPLR 3212(b) to add the clause at issue only in 2015. As a result, there is a dearth of authority on the question. The parties have not provided, and this court's research has not uncovered, any appellate decision directly addressing the scope of this clause.^[2]

At most, a 2018 decision of the Appellate Division, Third Department, held that a trial court providently exercised its discretion in declining to consider expert affidavits offered by a party at summary judgment, in a case where the party had not filed its CPLR 3101(d)(1)(i) expert disclosures until more than a year after the deadline set by the trial court. (See Colucci v Stuyvesant Plaza, Inc., 157 AD3d 1095, 1098-1099 [3d Dept 2018].^[3]) On the one hand, Colucci would seem to rest on an implicit conclusion by the Third Department that the trial court still had discretion to refuse to consider expert affidavits as a sanction for missing a court-ordered disclosure deadline. (See Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:29A, Paragraph 1, Subparagraph (i), Subdivision I [noting this point].) On the other hand, this (potential) basis for the Colucci Court's holding was entirely implicit: the Third Department's decision did not discuss the 2015 amendment to CPLR 3212(b) or the limits that the amendment places (or does not place) on trial-court discretion at summary judgment. This court is skeptical in these circumstances that Colucci should be regarded as necessarily settling the matter, and therefore considers CPLR 3212(b)'s scope afresh for itself.

This court concludes as an initial matter that the relevant clause of CPLR 3212(b) is ambiguous. One could potentially read this language broadly, as providing that a party's failure to provide an expert disclosure in advance of its summary judgment papers is never an acceptable ground for a trial court to decline to consider the expert affidavit at summary judgment—including in scenarios where a court rule or court order had expressly required the party to provide that disclosure in advance. (See Framan Mechanical, 2019 NY Slip Op 50583[U], at *4-*5 [advancing a version of this interpretation].^[4])

A narrower reading, though, also is feasible, under which CPLR 3212(b) bars only certain reasons for a court's refusal to consider expert evidence. That is, the relevant language states that a court shall not refuse to consider the evidence "because an expert exchange" under CPLR 3101(d) "was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].) On this interpretation, a party's delay alone (and thus the party's resultant failure to give advance notice of its intent to rely on an expert at summary judgment) is not a proper basis for the court to refuse to consider the party's expert evidence. By the same token, CPLR 3212(b) would leave intact the court's discretion to exclude that evidence for some other reason—such as the party's failure to comply with court-ordered deadlines.

B. The History of the 2015 Amendment to CPLR 3212(b)

The legislative history of the 2015 amendment to CPLR 3212(b) provides important insight on how to resolve this ambiguity.

The impetus for the amendment was a series of decisions of the First and Second Departments of the Appellate Division, holding that trial courts had discretion to—or perhaps were required to—disregard expert affidavits at summary judgment if the proponents of those affidavits had not served expert disclosures prior to the filing of the note of issue.^[5] In 2015, the Chief Administrative Judge's Civil Practice Advisory Committee concluded in its annual report that these decisions were questionable on multiple grounds and should be legislatively overruled.^[6]

The Advisory Committee report noted that courts had long tied expert disclosures under CPLR 3101(d)(1)(i) to "the date set for trial of an action or proceeding," not to the completion of pretrial discovery (as marked by the filing of the note of issue and certificate of readiness). (Advisory Committee Report at 27.) The Committee criticized the Appellate Division decisions at issue for "impos[ing] a temporal requirement for noticing expert witnesses" that does not appear in the CPLR, thereby, "in effect, preclud[ing] otherwise admissible expert testimony." (Id.) And the Committee expressed concern about the potential for confusion of practitioners forced not only to navigate potentially conflicting holdings on exclusion of expert testimony, but also the "multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure." (Id.)

The Advisory Committee therefore recommended that CPLR 3212(b) should be amended to provide "that a party's right to submit an expert affidavit" at summary judgment "would not be affected by whether or not the party made disclosure of the expert before submitting the affidavit." (Id. at 28.) The Advisory Committee's proposed amendment was then introduced in the Legislature at the request of the Chief Administrative Judge, and enacted as introduced. (See Bill Jacket, L 2015, ch 529, at 6.^[7])

C. Considering the 2015 Amendment's Scope in Light of its Text and History

The Advisory Committee's report is thus entitled to great weight in considering the mischiefs at which the 2015 amendment was aimed, and thus the appropriate scope of the amendment's ambiguous language.

The report reflects that the Committee's concern lay chiefly with timing—with appellate decisions that limited a party's ability to rely on an expert at summary judgment merely because the expert had not been disclosed during pretrial discovery. The Committee had little to say, on the other hand, about whether it would be appropriate (or inappropriate) for a court instead to preclude a party from introducing expert evidence at summary judgment because the party had flouted a specific court-ordered disclosure deadline.^[8] There is thus little reason to interpret the 2015 amendment (prompted by the Committee's recommendation) as removing a court's discretion to disregard an expert affidavit in the latter scenario.^[9]

Permitting exclusion of an expert affidavit for noncompliance with a court order also would be consistent with the Committee's other stated concerns and objectives, as well.

Courts have power to set deadlines for pretrial discovery and to impose consequences when those deadlines are not met. Excluding an expert affidavit for missing a court-ordered deadline for expert disclosure would not engraft an atextual temporal limitation into CPLR 3101(d)(1)(i) any more than would, for example, precluding documentary evidence under CPLR 3126 for failure to comply with court-ordered deadlines for producing documents under CPLR 3120.

Additionally, entry of a court order (such as a conference order) that sets specific pretrial deadlines for service of CPLR 3101(d) disclosures generally occurs only when the parties have already agreed that the circumstances of the particular case warrant providing fuller expert discovery well in advance of the note of issue filing and summary-judgment briefing—or where the parties have disagreed on that point and the court concludes that expert disclosures are needed at that stage of the litigation. This more case-specific treatment addresses the Advisory Committee's concern that CPLR 3101(d) disclosures are a trial matter that should not be categorically required to be dealt with in pretrial discovery. (See Advisory Committee Report at 27.)

Further, a court order setting expert-disclosure deadlines also will put a party on notice not only of what it must do, but that failure to comply risks consequences such as preclusion of evidence. And court orders imposing stern sanctions such as preclusion usually are the culmination of repeated discovery disagreements between the parties leading to judicial intervention(s). Preclusion orders issued during pretrial discovery are generally not bolts from the blue.

Relatedly, reading broadly the relevant clause of CPLR 3212(b) would foreclose a trial court from taking steps to enforce its own discovery orders—if, and only if, those orders set deadlines for service of expert disclosures. Indeed, that would be true even in a scenario in which the court's deadline-setting order was resolving a meritorious motion on notice to compel discovery. The text of the 2015 amendment to CPLR 3212(b) does not require this anomalous result. Nor does anything in the amendment's history even suggest that the Legislature (or the Advisory Committee) had this result in mind.

II. Whether This Court Should Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

As noted at the outset, this court concludes that Theroux must, by the time he files his note of issue, provide a CPLR 3101(d)(1)(i) disclosure for any damages expert that he intends to retain and rely upon at summary judgment. And, for the reasons given above, this court further concludes that it has discretion to refuse to consider an expert affidavit explaining and supporting Theroux's claimed damages, should Theroux not comply with this disclosure deadline. The question remains, though, whether imposing that discovery sanction would be an appropriate exercise of this court's discretion. The court concludes that it would.

The issue on which the Resnicows are seeking further disclosure from Theroux (on which Theroux has represented he will be relying on an expert's opinion) goes to the core of Theroux's case, namely what his claimed damages are—how much money he believes necessary to redress his injuries, in which categories, for which reasons. Given the significance of this information to the action, the Resnicows have long been persistent (indeed, vehement) in seeking this information from Theroux, and in seeking judicial intervention to compel Theroux to produce the information when he refused the Resnicows' requests. And this court's directive to Theroux affords him meaningful time (at present, nearly five months) to consider whether to retain an expert or experts and, should Theroux do so, to provide CPLR 3101(d)(1)(i) disclosures.

Given the importance of the requested expert disclosures to this case, and the amount of time that Theroux has to provide the disclosures, this court concludes that should Theroux fail without good cause to provide the disclosures by his deadline to file the note of issue, he will be precluded from relying at summary judgment on expert affidavits relating to damages. Any such preclusion would not extend, however, to use of expert evidence at a trial of this action, should trial ultimately be required. The issue of admissibility of expert testimony at trial would instead be considered anew at that point under CPLR 3101(d)(1).

[1] Given the status of discovery and the parties' schedule for taking the remaining depositions, as discussed in the recent conference the note-of-issue deadline will be extended through October 15, 2021.

[2] Indeed, this court is aware only of a single trial-court decision directly discussing the issue. (See Framan Mech., Inc. v Dormitory Auth. of the State of NY, 2019 NY Slip Op 50583[U] [Sup Ct, Albany County Mar. 7, 2019].)

[3] Cf. Washington v. Trustees of the M.E. Church of Livingston Manor (162 AD3d 1368, 1369 [3d Dept 2018] [affirming trial court's decision to consider plaintiff's expert affidavit at summary judgment, without reaching defendant's argument that the expert affidavit should have been excluded due to plaintiff's asserted noncompliance with trial-court discovery orders]; Barr v Liddle & Robertson, L.L.P. (2018 NY Slip Op 33113[U], at *2 [Sup Ct, NY County Dec. 5, 2018] [rejecting defendant's argument that plaintiff should be precluded from using an expert report at summary judgment for failure to meet expert-disclosure deadline, and deciding as an act of discretion to consider the expert report]).

[4] The decision in Framan Mechnical held that the Commercial Division rule in the case, which imposed preclusion for failure to comply with the rule's deadlines for expert disclosure, had to be "read in harmony with the statutory law enacted by the State Legislature," namely CPLR 3212(b). (2019 NY Slip Op 50583[U], at *5.) The decision did not consider in depth the proper scope of the relevant clause of CPLR 3212(b). Nor did it have occasion to address the issue here: whether the same result obtains should a court preclude expert evidence at summary judgment for failure to comply deadlines set out in a discovery order.

[5] See e.g. DeSimone v City of NY (121 AD3d 420, 421 [1st Dept 2014] [affirming trial court's discretionary decision to refuse to consider expert evidence because disclosure was not submitted until after filing of the note of issue]); Rivers v Birnbaum (102 AD3d 26, 39-43 [2d Dept 2012] [holding trial court had discretion to consider or disregard expert evidence where disclosure is filed after the note of issue, and properly exercised discretion to consider evidence]); Garcia v City of NY (98 AD3d 857, 858 [1st Dept 2012] [holding that trial court abused its discretion in considering expert affidavit where expert disclosure was not filed prior to note of issue despite longstanding demand for disclosure]); Construction by Singletree, Inc. v Lowe (55 AD3d 861, 863 [2d Dept 2008] [holding that trial court properly exercised its discretion to refuse to consider expert affidavit where expert disclosures and evidence were not served until after filing of the note of issue]).

[6] See Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York 25-28 (2015) (Advisory Committee Report), available at https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2015-CivilPractice-ADV-Report.pdf (last accessed May 26, 2021).

[7] This bill jacket may be found on the Bill Jackets page of the New York State Archives website, https://digitalcollections.archives.nysed.gov/index.php/Detail/collections/7782 (last accessed May 24, 2021). The analysis of the amendment in the bill jacket by its proponents is largely drawn verbatim from the Advisory Committee's analysis. (See Bill Jacket at 6-8, 12-14.)

[8] In Rivers v Birnbaum, the Second Department specifically emphasized a trial court's authority to "impose a specific deadline . . . for the disclosure of experts to be used in support of a motion for summary judgment," and noted that its holding in the case was not intended to call into question the court's "discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline.' (102 AD3d at 41-42.) The Advisory Committee report, though discussing other aspects of Rivers, did not mention this passage of the decision. Although perhaps not compelling, standing alone, the absence of discussion of the issue in the report is at least a small point in favor of this court's conclusion here.

[9] This court need not, and does not, address the distinct question of whether a court may properly preclude a party from relying on an expert affidavit at summary judgment as a sanction for failing to comply with a local court rule setting a general deadline for expert disclosures, such as the Commercial Division rule at issue in Framan Mechanical. (See 2019 NY Slip Op 505"

MORE ON "BAD NEIGHBORS" - WHAT TO DO WITH CONSTRUCTION NOISE

This noise case also illustrates the need to gather proper evidence and the high cost of litigation. Mere allegations will not always suffice and documents and experts can be needed to establish claims; and in this case, the cost of proving the allegations were probably higher than the amount of damages in issue.

Dollinger v United Eng'g Servs., PC, 2021 NY Slip Op 50516(U), Decided on June 3, 2021, City Court Of Mount Vernon, Seiden, J:

"Plaintiff brought this small claims proceeding for five thousand dollars ($5,000.00) alleging loss of profit based upon defendant's alleged violations of building permits and making excessive noise at a construction site located at 275 Washington Street, Mount Vernon, NY. Defendant failed to appear in this proceeding and the court held an inquest on April 23, 2021.

Plaintiff lives at 10 Claremont Place in Mount Vernon, New York and works from home. He does voice overs in his home recording studio. Plaintiff alleged that while doing construction work at 275 Washington Street in Mount Vernon, the defendant was making excessive noise and commencing work with drills prior to the time allowed on their building permit. Plaintiff alleged that the defendant operated a drill on weekends in violation of their permits. Plaintiff stated that his complaints to the Building Department and calls to the police shut the construction down on several occasions, however, the excessive noise occurred at least six or seven times. He alleged [*2]that defendant created an environment where he could not enjoy the peace and quiet of his home and workplace.

Here, plaintiff submitted several videos of the noise coming from the construction site. In the videos, defendant is either standing in his entry doorway or sitting in his home studio. The construction noise is heard clearly in every video. There is also a video of a police car on the scene. Plaintiff stated that he complained to the Mount Vernon Building Department and Mayor's Office on several occasions about the noise. He submitted email correspondence of his complaints with the Mayor's Chief of Staff Darren Morton, and Planning Administrator William Long. Plaintiff stated that the police arrived at the construction site on several occasions to shut down the construction because defendant was operating outside the scope of the permitted times and days.

To recover for loss of profits, plaintiff must demonstrate that the defendant either breached a contract or committed a tortious act (New Life Holing Corp. v Turner Constr. Corp., 2014 NY Slip Op 32590(U) [Sup. Ct. New York Co. 2014]). "Although the amount of such damages need not be proven to exactitude, they must be demonstrated with sufficient certainty, and cannot be speculative" (Id. citing Levine v American Federal Group, Ltd., 180 AD2d 575, 577 [1st Dept 1992]).

Plaintiff and defendant did not have a contractual agreement with one another. Accordingly, in order for plaintiff to recover damages for loss of profits, plaintiff must first establish that the defendant committed a tortious act. Here, based on the allegations raised and documentary evidence submitted, the Court finds that the evidence submitted by plaintiff failed to demonstrate that the defendant's work at the construction site amounted to the commission of a tortious act, namely a private nuisance.

The New York Court of Appeals has held that "one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is 1) intentional and unreasonable, 2) negligent or reckless, or 3) actionable under the rules governing liability for abnormally dangerous conditions or activities" (Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977]).

The reasonableness of conduct is measured by reference to the ordinarily reasonable person (Id. at 524). The temporary noises and annoyances that come with construction projects in urban/developed areas, without more, will not give rise to a nuisance claim (Celebrity Studios Inc. v Civetta Excavating, Inc., 72 Misc 2d 1077 [Sup Ct. New York Co. 1973]). However, "[a] contractor with a permit to 'excavate or build in the public highway, but who does that work or maintains it in a negligent and dangerous manner commits a nuisance'" (MacArthur Props., LLC v Metropolitan Transp. Auth., 61 Misc 3d 1204 (A) [Sup Ct. New York Co. 2017] (citing Hartman v Lowenstein, 90 Misc. 686 [1st Dept 1915]); see also Malerba v Warren, 108 Misc 2d 785 [Sup Ct. Suffolk Co. 1981] (defendant property owners guilty of private nuisance and liable for loss of income where they ignored town cease and desist orders and constructed illegal structure in violation of town building regulations).

In Celebrity Studios, a Manhattan rehearsal studio, where auditions and classes in the field of music are conducted, commenced an action against a construction company working on an adjacent lot. The studio alleged that dynamite explosions and vibrations coming from the site had created excessive noise and a nuisance, thereby impairing the income of the business and [*3]depriving the plaintiff of the quiet enjoyment of the premises. The court denied the studio's nuisance claim and held that even though plaintiff maintained a rehearsal studio affected by the sound and vibrations, it was in no essentially different position from hundreds of adjacent businesses, the smoothness of whose operations might also be impacted by the inconvenience. If all businesses in the area "were to be permitted the right to recover for all those construction noises, the scope of liability confronting any prospective builder would be so vast as to immobilize all areas of the city into permanent rigidity" (Id.) Accordingly, some degree of noise and discomfort is inevitable in an urban society and construction and demolition will be part of the daily scene. "The originator of noise cannot be held to varying standards dependant upon the identity and characteristics of his neighbor" (Id.).

In Mango Sound v 729 Acquisition LLC, 2006 NYLJ LEXIS 2187 [Sup Ct. New York Co. 2006], a film, video and tape-recording studio in Times Square complained that the noise and vibrations from construction of a new restaurant were substantially interfering with the recording, theater and production activities in its studios and that, as a result, it was suffering permanent loss of business. Plaintiff complained that the noise and vibrations from the construction site exceeded acceptable levels of New York City construction laws and constituted a nuisance. The studio sought a permanent injunction to prevent construction work during their hours of operation. The court, relying on the holding in Celebrity Studios, denied the plaintiff's motion. The court stated "[t]he fact that the plaintiff's business operation, involving sound studios, is particularly sensitive to and affected by such noise and vibrations does not, without more, mean that the construction is in violation . . .." (Id.) The court also noted that despite complaining that the noise exceeded acceptable levels, the plaintiff failed to submit any affidavits from sound experts or demonstrate that the construction site had been cited by the city authorities for any violation of any governmental rule or regulation relating to noise.

Employing the same rationale from the Celebrity Studios and Mango Sound cases, this court finds that plaintiff has failed to establish a private nuisance claim. The court is mindful that this construction project has been a very annoying and tiresome ordeal for plaintiff. Though he testified that the Building Department and Police shut the site down on several occasions because of permit violations, there were no building code violations submitted supporting these claims. The video of the police car at the scene, videos of the noise heard from his residence, and emails to city officials, without more, does not give rise to a nuisance violation." 

MORE NOISY NEIGHBORS

The court's suggestion at the end of the opinion is most noteworthy and I have highlighted it.

CID ASSOC., LLC v. ALMAAS, 2021 NY Slip Op 30669 - NY: Supreme Court March 5, 2021:

"This action, which was commenced by plaintiff-landlord via summons with notice, seeks wide-ranging relief from injunctions to ejectment. Plaintiff owns the building located at 101 St. Marks Place, New York, New York (the "Building"). Defendant is a long-term tenant of Apartment 19 at the building pursuant to a rent stabilized lease.

At its core, the landlord seeks to alleviate the complaints of other tenants at the building stemming from defendant's alleged disruptive behavior, including: [1] playing loud music and allowing loud noises to emanate from the apartment and causing a disturbance to other tenants in the Building at all hours of the evening and early morning; [2] banging furniture and other objects on the apartment floor and walls; [3] causing other tenants to wake up in the middle of the evening and not be able to properly sleep; [4] harassing Building residents; and [5] engaging in other unspecified "dangerous, menacing and erratic [b]ehavior." Plaintiff further complains that the defendant has failed to timely pay rent due under the lease. As conceded by plaintiff's counsel at oral argument held on the record on 3/2/21, this action has been brought in Supreme Court because plaintiff is unable to obtain relief in housing court associated with defendant's alleged conduct at this juncture due to Covid-19-related measures designed to protect tenants impacted by the pandemic.

In support of the motion, plaintiff has provided sworn affidavits from its manager, its superintendent, as well as four current tenants and/or occupants of the Building, and two former tenants thereof. The superintendent, Pllumb Cekaj, states in relevant part:

Defendant causes music to blare at extremely high levels at all hours of the night and early morning, and will scream at the top of her lungs. Defendant will also allow objects to bang on the floor and walls, while also slamming her door. Defendant's conduct is clearly done to intimidate, harass and disturb the other tenants in the Building.

The tenants in the Building often contact me in the middle of the night due to noise complaints being made against Defendant.

The tenants state the Defendant is making too much noise that it interrupts their sleep and causes them to lose the peaceful enjoyment of their apartments.

Maria Teresa Cacho Estefania, the current tenant of Apartment 14, states in relevant part:

Defendant deliberately allows loud noises, consisting of: (a) extremely loud music; (b) screaming; and (c) banging on the floors and doors to emanate from Apartment 20 and cause a disturbance to the other tenants in the Building. The conduct always occurs late in the evening and continues into the early morning hours.

Defendant causes myself and my husband to wake up in the middle of the night at least two to three each week.

I do not keep a log of the nights that my sleep is disturbed and interrupted by Defendant because the conduct is constant and occurs every week.

Robert Miller, who is married to Estefania and is also current tenant of Apartment 14 confirms his wife's account in another sworn affidavit. Plaintiff has also submitted the sworn affidavit of Bridget Cushing, a current tenant of Apartment 20 who moved into the building in August 2020. Cushing explains that her apartment faces the defendant's apartment. She further states in relevant part as follows:

On the first night I took occupancy of Apartment 20, Defendant blasted music at an excessive level from 8:00 p.m. to 5:00 a.m. Defendant's conduct was deliberate and meant to send a message to me that she can do whatever she wants and does not care what her behavior costs her neighbors.

Since taking occupancy, Defendant has continued to blast loud music, scream loudly in her Apartment, constantly bang and slam her door, and cause a nuisance at least two to three times every week.

Defendant's conduct has only gotten worse in recent months.

Defendant's conduct forces me to get no sleep on multiple evenings and has greatly diminished by ability to use of Apartment 20 for the purpose I rented it for, specifically to sleep, rest and have a place to live.

Due to Defendant's conduct, I am forced to walk quietly in Apartment 20 so that Defendant does not realize that I am home. If Defendant is not aware that I am home, then she does not create loud, objectionable noises.

When Defendant is aware that I am in Apartment 20 she will constantly slam her door loudly as a threat. These acts cause me to fear for my safety as I do not know if Defendant intends to come to my apartment.

Defendant has also been observed by myself videotaping Apartment 20's entry door. It appears that Defendant is trying to goad me into an altercation where she will videotape only the part of the incident where I am wrong. I have avoided her during these moments and have made multiple calls to 3-1-1 and the NYPD. Even when the NYPD arrives, I do not feel safe, as Defendant will try to seek retribution by making loud noises and screaming at me once they leave the Building.

I have also refrained from having friends and family visit me at Apartment 20. On one occasion, in October 2020, I had a friend visit and Defendant constantly was banging on my door and scaring me and my friend. When my friend left, we noticed the offensive sign on Defendant's door telling my friend to "Get the F---K Away". I took the photograph of the sign and sent it to Plaintiff.

On at least two or three evenings each month, the objectionable conduct becomes more violent and loud. On these nights there is no way that I can sleep and I fear that the anxiety induced on these evenings will cause more sleepless nights.

Defendant is a danger to this Building and to everyone who lives here

Plaintiff has provided a sworn affidavit from Alexandra Papadopolulos, the current occupant of Apartment 25, who has lived in the Building as a roommate of Sheila O'Neal, the tenant of Apartment 25. Apartment 25 is located directly above the defendant's apartment. Papadopolulos states in relevant part:

Since the first day that I have lived in the Building, I have had the displeasure of having to deal with Defendant. Residing in the apartment above Defendant is a living hell, as I never know whether she will have a violent episode on any given night.

...

As Apartment 25 is directly above Apartment 19, I often feel my floors start to shake from the insanely loud music played by Defendant.

Defendant's conduct is deliberate and intended to cause unease and harm to the other tenants in the Building. Defendant will purposefully play extremely loud music for twenty to thirty second sessions and then go completely silent for five to ten minutes. This conduct will go on from 10:00 p.m. to 3:00 a.m. multiple times every week.

...

Defendant has also caused me to avoid having any guests in Apartment 25. In July 2020, 1 had a friend visit me at Apartment 25. Defendant immediately began to blast last music when she knew I had company. When my guest asked Defendant to lower her music, Defendant responded by harassing my guest and throwing garbage outside my door. When cleaning up the garbage I saw shards of glass that had broken off a bottle and were all over the floor, creating a dangerous condition

...

Due to Defendant's constant loud noise and harassment, I have contacted 3-1-1 on at least eight occasions.

On two of the eight occasions, the NYPD appeared in the Building.

Upon the police leaving the Building, Defendant's conduct always gets worse and she always gets extremely angry. These are the times that I am most concerned for my own safety.

Plaintiff has provided affidavits from two former tenants, Jesse Schwartz and Sarah Story, who claim that they vacated the apartment due in whole or in part to the defendant and her conduct.

Meanwhile, in her affidavit submitted in opposition to the motion, defendant admits that she "love[s] music, especially reggae." She further states:

I have a vinyl collection and play it on a turntable because I find that has better sound than any other way of listening to music. Some times I invite my friends to my home to celebrate special occasions and we sing along to the music. In 2020 we did not have much to celebrate except my birthday on September 15 and when Joe Biden won the presidency.

Most of the times when I play music or watch a movie my neighbors do not have any problem with it. I have no way of knowing if they are annoyed or even home to hear it unless they ask me to turn it down. Generally whenever my neighbors have knocked on my door to ask me to turn down the music, I feel bad for disturbing them and turn it off or down.

Otherwise, defendant claims she does not recognize the names of some of the people who submitted affidavits in support of plaintiff's application, points out that the tenant who lives in Apartment 25 did not submit an affidavit and wonders "why the noise bothers Ms. O'Neil's roommate but not her." Defendant further states:

I like to get to know my neighbors, so I wish that the other tenants who submitted affidavits, Mr. Schwarz, Ms. Cushing, Ms. Story, and Mr. Miller, had just talked to me civilly instead of calling the police, 311, and the landlord. I would have happily participated in mediation if they had calmly requested that so that we could find a solution that works for everyone without the threat of a judgment aimed at me.

Discussion

A preliminary injunction is a drastic remedy and should not be granted unless plaintiff can demonstrate "a clear right" to such relief (City of New York v. 330 Continental, LLC, 60 AD3d 226 [1st Dept 2009]). On a motion for preliminary injunctive relief, plaintiff must demonstrate a likelihood of success on the merits, irreparable injury absent the granting of the preliminary injunction, and a balancing of the equities in its favor (see Aetna Ins. Co. v. Capasso, 75 NY2d 860 [1990]; see also 1234 Broadway LLC v. West Side SRO Law Project, 86 AD3d 18 [1st Dept 2011]).

A cause of action for private nuisance requires a showing that the defendant's conduct "is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564 [1977]; see Hutcherson v. Hill, 161 AD3d 495 [1st Dept 2018]; Domen Holding Co. v. Aranovich, 1 NY3d 117 [2003]).

A landlord may terminate a rent stabilized tenancy due to a nuisance condition. The Rent Stabilization Code, 9 NYCRR § 2524.3, provides as follows:

Without the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows:

(b) The tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety.

While a finding of a violation of the New York City Noise Control Code is not necessary to demonstrate a prima facie cause of action for private nuisance (see 61 West 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330 [1st Dept 2010]), its provisions are instructive. NYC Administrative Code § 24-218 provides in relevant part as follows:

(a) No person shall make, continue or cause or permit to be made or continued any unreasonable noise.

(a-1) No person shall make, continue or cause to permit or be made or continued any unreasonable noise:

(1) for any commercial purpose or during the course of conducting any commercial activity; or

(2) through the use of a device, other than a device used within the interior living space of an individual residential unit, installed within or upon a multiple dwelling or a building used in part or in whole for non-residential purposes.

(b) Unreasonable noise shall include but shall not be limited to sound, attributable to any device, that exceeds the following prohibited noise levels:

(1) Sound, other than impulsive sound, attributable to the source, measured at a level of 7 dB(A) or more above the ambient sound level at or after 10:00 p.m. and before 7:00 a.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way.

(2) Sound, other than impulsive sound, attributable to the source, measured at a level of 10 dB(A) or more above the ambient sound level at or after 7:00 a.m. and before 10:00 p.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way.

(3) Impulsive sound, attributable to the source, measured at a level of 15 dB(A) or more above the ambient sound level, as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way. Impulsive sound levels shall be measured in the A-weighting network with the sound level meter set to fast response. The ambient sound level shall be taken in the A-weighting network with the sound level meter set to slow response.

This action has been commenced by summons with notice, and there is no complaint at this juncture. Thus, it is unclear what precise legal theories plaintiff will assert and what remedies plaintiff will seek in this action. The court finds that plaintiff is attempting to assert a cause of action for ejectment based upon nuisance against the defendant.

On this record, there are six affidavits from current and former tenants of the building who live in close proximity to the defendant attesting to her objectionable and disruptive conduct spanning a significant period of time and particularly occurring late at night. These affidavits are consistent in their descriptions of defendant's conduct. Plaintiff's own employees state based upon their personal knowledge that they have received numerous complaints about defendant's behavior. Numerous 311 complaints have been made, and the NYPD has been involved on multiple occasions.

For her part, defendant does not deny listening to music. Indeed, she implicitly admits that sometimes, when she plays music or watches a movie, her neighbors do have a problem with it. The court is troubled by defendant's further admission that "[g]enerally whenever my neighbors have knocked on my door to ask me to turn down the music, I feel bad for disturbing them and turn it off or down." This statement concedes that defendant has been repeatedly asked to turn her music down. Defendant's use of the word "generally" is cause for concern because it may imply that there are times when she does not feel bad for disturbing her neighbors or doesn't turn down her music. Nonetheless, the fact that defendant admits she has been repeatedly asked by her neighbors to turn down her music highlights an ongoing problem and a potential nuisance.

Defendant further admits to having knowledge that tenants have contacted 311 and the NYPD to complain of noise she has caused. Contrary to defendant's contention, there is no legal requirement that plaintiff or its tenants talk to her "civilly" nor mandate that the parties proceed to mediation which defendant claims she "would have happily participated in [] if they had calmly requested that..." While mediation may be fruitful at this juncture, a topic which was explored by the court on the record during oral argument, it is defendant who is obligated by law not to cause or maintain a private nuisance in the first instance.

However, as defense counsel points out, plaintiff has failed to serve a predicate notice on defendant. Indeed, no such notice is annexed to plaintiff's moving papers. Part of plaintiff's prima facie case in this action seeking ejectment is that the defendant has been served with a valid notice required by 9 NYCRR § 2524.2. That provision states in relevant part:

Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

A landlord's failure to serve this predicate notice or otherwise comply with 9 NYCRR § 2524.2 mandates dismissal of an action seeking possession (see i.e. Hirsch v. Stewart, 63 AD3d 74 [1st Dept 2009]; see also Prana Growth Fund I, L.P. v Lazala, 8 Misc 3d 667 [Sup Ct NY 2005]). Since plaintiff has failed to serve the requisite notice on defendant in compliance with the rent stabilization code, it has necessarily failed to demonstrate a likelihood of success on the merits at this juncture.

Accordingly, the motion for injunctive relief must be denied. This result gives the court pause, because as the court has laid out in this decision, defendant's conduct if proven could very well result in her ejectment from the apartment. The court is optimistic that defendant, a long-term rent stabilized tenant, can reach an amicable resolution of this action. That may involve concessions on defendant's part as simple as lowering the volume of the audio devices she is using or wearing headphones at night, options which defendant may want to consider to avoid further litigation. Apartment dwelling in New York City does not come without compromises such as hearing reasonable noise from one's neighbors, among other sources. However, defendant cannot engage in behavior that constitutes a private nuisance without impunity.

The balance of the motion seeking relief for defendant's alleged nonpayment constitutes an impermissible end-run around the moratorium on evictions due to non-payment and is therefore denied."