Opinion
No. L & T 55525/2014.
06-24-2014
PRINCE GEORGE ASSOCIATES L.P., Petitioner–Landlord v. CISLYN MAIS 14 EAST 28TH STREET, Apt. 830 New York, New York 10016, Respondent–Tenant.
Kellner Herlihy Getty & Friedman, LLP, By: Charles E. Krausche, II, Esq., New York, NY, for Petitioner. Ciscyn Mais, Respondent Pro Se.
Kellner Herlihy Getty & Friedman, LLP, By: Charles E. Krausche, II, Esq., New York, NY, for Petitioner.
Ciscyn Mais, Respondent Pro Se.
SABRINA B. KRAUS, J.
BACKGROUND
The underlying summary holdover proceeding was commenced by PRINCE GEORGE ASSOCIATES L.P. (Petitioner) against CISLYN MAIS (Respondent) seeking to regain possession of 14 East 28th Street, Apt. 830, New York, New York 10016 (Subject Premises) based on the allegations that Respondent, the rent stabilized tenant of record, has breached her lease and created a nuisance be engaging in objectionable conduct.
PROCEDURAL HISTORY
Petitioner issued a Notice to Cure dated November 13, 2013. The notice asserted that Respondent had breached paragraph 6(B) of her lease by making noises that interferes with the rights of other tenants. The notice further asserted other objectionable conduct, not subject to cure, including playing loud music, at hours where people are normally sleeping, banging on the walls, making harassing phone calls to another tenant on the house phone, making threats to the neighboring tenants, using foul language and verbally abusing staff. The notice of termination issued January 24, 2014, and the proceeding was initially returnable on February 28, 2014.
On said date, the proceeding was adjourned to April 1, 2014, based on Respondent's request for time to retain counsel. On May 16, 2014, Judge Kaplan issued a transfer order sending the matter to the expediter's part for assignment to trial. The order provided that no traverse hearing was required.
There is no written answer submitted by Respondent, and a general denial is deemed asserted on her behalf.
On June 13, 2014, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date, and the court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the subject building pursuant to a deed dated February 11, 1990 (Ex 1). The building has a valid multiple dwelling registration (Ex 2). Respondent is the rent stabilized tenant of record for the Subject Premises, pursuant to a written lease dated October 5, 2012 (Ex 9). The legal registered rent for the Subject Premises as of August 2013 is $1866.39, but Respondent pays $490.00 per month (Ex 3) per Petitioner's regulatory agreement with HPD.
The first witness to testify for Petitioner was Parastram Harry (Harry). Harry is a security guard at the subject building. Harry has been in this position for ten years since August 2004 and is licensed by the State of New York. Harry is stationed in the front desk at the lobby of the building which is near the front door. There are approximately 416 residential units in the subject building.
On February 9, 2013, in the afternoon, Respondent attempted to enter the building through the handicap entrance. Harry asked Respondent to swipe her card to enter the building as required. Respondent yelled at him. Harry testified that the Respondent stated he should shut his filthy mouth because she was a tenant. Harry did not find the event unusual or remarkable testifying that tenants often react to such requests in a like manner. Harry was directed by his supervisor to write up an incident report documenting the occurrence which he did (Ex 4D).
Harry filed three other incident reports (Ex 4A–4C) which documented three times where Respondent's neighbor, Adrienne Henson (Henson) the tenant of record in Apartment 831 called to complain that Respondent was playing loud music, and Harry went up and verified the complaint. These incidents took place on December 22, 2013, at 3:50 am, December 29, 2013 at 8:02 am, and February 17, 2014 at 4:12 am. On two occasions, Respondent did not answer when Harry tried to discuss the music, but on December 29, 2013, Respondent refused Harry's request to lower the volume of her music and stated that Henson had instigated the incident by kicking on their adjoining wall. Harry advised Henson to record the music and call the police.
The next witness to testify for Petitioner was Henson. Henson testified that she started to have a problem with Respondent in February or March 2013. Henson mainly complained that Respondent knocks and bangs on the walls, plays loud music with a loud base, and harasses her with phone calls. Henson described the knocking as akin to the bouncing of a tennis ball. Henson testified that Respondent engages in this behavior at all hours of the day or night. Henson testified that occasionally a picture on her wall would shake from the banging. Henson testified that when the noise got really loud she would call security or make an incident report. Henson moved her bed to the other side of her room, to avoid the noise from the Subject Premises.
Henson is employed and works from approximately 10am to 7 pm. Henson generally goes to bed at 10 or 11 pm, and sleeps until 9 am. Henson testified that she never asked Respondent to lower her music or stop banging.
Henson testified that in the Spring of 2013, she received harassing phone calls from Respondent, but the last such phone call was the week of Christmas 2013. Henson had to unplug her phone on a few occasions to avoid these calls. Henson testified that Respondent complained on these calls that Henson was making disturbing noises, bothering Respondent's guests, and that Respondent threatened Henson on these occasions. Henson testified that Respondent has also cursed at her, for example calling her a “Fucking Bitch”.
Last August Henson went to the 13th precinct to file a harassment complaint with NYPD against Respondent alleging Respondent had made harassing phone calls and cursed at her.
There are two incident reports in evidence pertaining to complaints Henson made regarding the harassing phone calls. On May 10, 2013, Henson complained that Respondent had called her and stated “stop banging on the fucking wall bitch” (Ex 6A). On August 26, 2013, Henson also complained that Respondent had been making harassing phone calls to the same effect.
Henson testified that in the month leading up to the trial Respondent has continued this conduct on a nearly daily basis, with the loud music occurring mostly at night and the knocking going in spurts. Henson acknowledged that she also makes noises in her apartment that Respondent has complained of, and acknowledged on crossexamination acknowledged that in the beginning she too would bang on the wall to annoy Respondent. Henson further acknowlegdged on cross-examination that the loud music had been much worse and that now Respondent plays it at substantially lower volumes.
Henson testified that the conduct continued nearly every day in the month before the trial date, with loud music being played at night and knocking in spurts during the day.
Henson's testimony was somewhat vague and conclusory and she spent large portions of time, while on the stand reviewing documents to refresh her recollection.
Henson testified that Respondent's behavior interrupts her ability to sleep in her apartment, disturbs any guests she might have, and prevents her from peacefully occupying her apartment. Henson has also been very stressed out from these incidents and has consulted with her social worker. Henson was angered and upset by Respondent's behavior.
The next witness to testify for Petitioner was Shana Wertheimer (SW). SW is a building director for management of the subject building. SW has had this position for approximately one and a half years. SW oversees building staff, leasing and collection of rent. SW also tries to resolve conflicts that arise between tenants.
SW has spoken with Respondent regarding her tenancy on several occasions since Respondent became a tenant in 2011. SW met with Respondent in the Spring of 2013. When noise issues were originally brought to SW's attention, she testified that Petitioner attempted mediation to avoid legal proceedings. SW met with Respondent and her social worker on more then one occasion for this purpose.
SW also spoke with Henson about other options to deal with noise, and noted that noise for people suffering from anxiety can be a particular problem. The Subject Premises is supportive housing. Each tenant has a social worker assigned and has psychiatric services available on site. Sixty percent of the units are designated for formerly homeless individuals, and forty percent are designated for low income individuals, but all tenants are assigned a case manager. Common Ground is the managing agent for the Subject Building.
The Subject Premises is a single room less then 450 square feet. The walls in the Subject Premises are very thin and most noises can be heard by neighboring units.
No other tenant has complained about Respondent's noise other then Henson. No other tenant was called by Petitioner as a witness at trial.
Respondent testified on her own behalf. Respondent testified that Henson has harassed her by banging on the wall, and harassing phone calls. Respondent testified that both Henson and security have disturbed her sleep with baseless noise complaints.
Respondent testified that the first time Petitioner approached her about the noise issue multiple agents appeared at her door unannounced. Respondent testified that she passed out on this occasion and needed paramedics to be called because she has hypertension. Respondent testified that Petitioner's agents were trying to convince the paramedics to admit Respondent to Bellevue Hospital against her will.
Respondent had requested that her room be changed, but this request was not accommodated by Petitioner. Respondent asserts that she is being discriminated against by SW and describes Henson as “a wolf in sheep's clothing.” Respondent feels that Petitioner has sided with Henson against her in regards to this dispute.
DISCUSSION
Nuisance
Rent Stabilization Code 9 NYCRR § 2524.3(b) provides for a tenant's eviction where the tenant commits or permits a nuisance. To establish a cause of action for nuisance, Petitioner must establish that Respondent's behavior constituted a continuous invasion of the rights of other residents in the Subject Building [Frank v. Park Summit Realty Corp 175 A.D.2d 33 (1st Dept, 1991) ].
While noise has been found to establish nuisance, this has typically been where more then one tenants complains about the alleged noise [see eg Brodcom West Development Co. v. Best 23 Misc.3d 1140(A) ; Roaj Realty Inc v. Ortega 2002 N.Y. Slip Op 50214(U);Carnegie Park Associates v. Graff 2003 N.Y. Slip Op 51198(U); Evergreen Assoc. V Calderon, NYLJ June 25, 1996 (App Term, 1st Dept);].
In this case the court finds that Petitioner failed to meet its burden of establishing by a preponderance of credible evidence that Respondent's behavior constituted a nuisance. Only one tenant testified. The court found said tenant to be an unreliable witness and said tenant acknowledged engaging in similar acts towards the Respondent. The court does not accord great weight to the testimony of Henson. Henson's testimony was vague and conclusory, and she repeatedly attempted to refresh her recollection by review of documents while on the stand.
The court found Respondent to be a credible witness.
Additionally, out of the five incident reports admitted into evidence, only one incident occurred in 2014 (Ex 4C), and one involved playing music after 8 am, which is not per se unreasonable.
The genesis of the proceeding seems to be a dispute between these two neighboring tenants, and their inability to peacefully co-exist. The evidence at trial was more indicative of bickering neighbors then nuisance (see eg Louisiana Leasing Company v. Sokolow 48 Misc.2d 1014).
As held by one court:
Apartment-house living in a metropolitan area is attended with certain well known inconveniences and discomforts. The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling. Mutual forbearance and the golden rule should, but unfortunately in many cases do not, act as the yardstick for the conduct of tenants in apartment houses. Reasonable consideration of the comfort of neighbors should be exercised by the occupants.
...
To constitute nuisance, the use of one's property must be unwarrantable, unreasonable or unlawful to the annoyance, inconvenience, discomfort or damage of another, Mere annoyance in and of itself does not create a nuisance or make the tenancy of the occupant undesirable (Twin Elm Management Corporation v. Banks 181 Misc. 96, 97).
Finally, Harry testified that he was not disturbed by the incident with Respondent yelling at him one the one occasion noted, and in fact testified that Respondent's behavior was typical of other tenants to whom he had made similar requests.
Based on the foregoing the cause of action for nuisance is dismissed.
Breach of Lease
Paragraph 6(B) of Respondent's lease provides that Respondent will follow house rules.
Rule 9 provides in pertinent part that tenants shall not make any disturbing noises which interfere with the rights, comforts or convenience of other tenants, and that they shall not play music in a manner that disturbs or annoys other tenants.
While the court did not find that Petitioner established that Respondent's conduct rises to the level of nuisance, the court does find, indeed Respondent even acknowledged, that she breached her lease by intentionally making noises that interfered with Henson's enjoyment of Henson's apartment on more then one occasion.
Moreover, Respondent did not establish that she cured said breach by stopping the conduct within the time period established in the Notice to Cure. Based on the foregoing, Petitioner is entitled to a judgment of possession. Issuance of the warrant is stayed for Respondent to immediately cease the conduct and cure the breach. To effect the immediate cure, Respondent shall forthwith cease banging on the walls of the Subject Premises for any reason, refrain from making any phone calls to Henson or otherwise directly communicating with Henson, and refrain from playing music after 11pm or before 8 am.
In the event Respondent fails to cure, Petitioner may seek insurance of the warrant by submission of an affidavit of default on notice to Respondent.This constitutes the decision and order of this court.
Parties may pick up their exhibits from the courthouse, in the clerk's office in the second floor, window 9, within thirty days of receipt of this decision. After said date the documents may be destroyed in accordance with administrative directives.
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