Opinion
Index No. 154642/2017 Motion Seq. Nos. 001 004
07-29-2019
JUSTIN THEROUX, Plaintiff v. NORMAN J. RESNICOW and BARBARA RESNICOW, Defendants and 71 WASHINGTON PLACE OWNERS, INC. and BOARD OF DIRECTORS OF 71 WASHINGTON PLACE OWNERS, INC., Nominal Defendants.
Pryor Cashman LLP (Eric D. Sherman, Bryan T. Mohler, and Rebecca L. Matte of counsel), for plaintiff. Peter M. Levine, Esq., New York, for defendants Norman J. Resnicow and Barbara Resnicow.
Unpublished Opinion
MOTION DATE 02/27/2019.
Pryor Cashman LLP (Eric D. Sherman, Bryan T. Mohler, and Rebecca L. Matte of counsel), for plaintiff.
Peter M. Levine, Esq., New York, for defendants Norman J. Resnicow and Barbara Resnicow.
PRESENT: HON. GERALD LEBOVITS, Justice.
DECISION + ORDER ON MOTION
Gerald Lebovits, J.:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 60, 61, 62 were read on this motion to/for PRELIMINARY INJUNCTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 155, 174, 175, 176 were read on this motion to/for PRELIMINARY INJUNCTION.
Plaintiff, Justin Theroux, is neighbors with defendants Norman J. Resnicow and Barbara . Resnicow in a co-operative apartment building at 71 Washington Place in New York County. Theroux and the Resnicows have been engaged for several years in an ongoing quarrel that escalated to litigation and motion practice before this court. This decision and order relates to . two motions Theroux filed for preliminary injunctive relief under CPLR 6311, consolidated here for disposition. Theroux seeks (i) to enjoin Norman Resnicow from trespassing on Theroux's property; and (ii) to enjoin Norman Resnicow from harassing, intimidating, or otherwise influencing witnesses or potential witnesses in this litigation. The motions are granted.
Trespass. Theroux contends that he is entitled to preliminary injunctive relief based on Resnicow's repeated trespasses on Theroux's property. Resnicow's principal argument in response is that many of the alleged trespasses were justified by the need to abate a private nuisance caused by Theroux himself. But this court has rejected that argument and declared Resnicow's conduct to constitute a trespass. (See Theroux v Resnicow, Index No. 154642/2017, 2019 NY Slip Op 31819 (U), at *6-*7 [Sup Ct, NY County June 25, 2019].)
Resnicow also contends that preliminary injunctive relief is unnecessary because Theroux's motion papers fail to allege that Resnicow has continued to trespass on Theroux's property. But in other filings made after briefing on this motion, Theroux identifies several additional acts of trespass. Resnicow also does not explain why granting this injunction would impose an unreasonable burden on him to comply - particularly in light of this court's decision and order defining the boundary line between each party's share of the roof deck. (See id.).
Witness Harassment. Theroux claims that Norman Resnicow has engaged in verbal and written harassment of several of his neighbors who are on the 71 Washington Place co-op board, and thus both nominal defendants and witnesses (or prospective witnesses) in this matter. This court previously granted Theroux a temporary restraining order on this claim, based on detailed affidavits from individuals describing highly unpleasant interactions with Resnicow related to his dispute with Theroux. Theroux later moved to have this court hold Resnicow in contempt for violating the TRO; the parties ultimately settled that motion, with Resnicow paying legal fees.
Theroux is entitled to a preliminary injunction. Preventing harassment or intimidation of witnesses is crucial to our system of justice, so that no party may "influence a proceeding and obtain an outcome therein through extra-judicial means." (Kalyanaram v New York Inst, of Tech., Index No. 107961/2007, 2007 WL 4226677, at *3 [Sup Ct, NY County Oct. 15, 2007], aff'd on appeal from final judgment 63 A.D.3d 435, 435 [1st Dept 2009].) Theroux has submitted ample evidence that Resnicow has harassed and sought to intimidate other residents of his building regarding this action, including retaliating against them for having submitted to this court sworn statements that support Theroux's position in the case. Theroux has also submitted evidence that Resnicow continued to do so after this court entered a temporary restraining order prohibiting such conduct. Resnicow's counsel has not given this court any authority indicating that the grant of preliminary injunctive relief would be inappropriate here.
At most, Resnicow's counsel argues that in Kalyanaram, the propriety of the injunction against witness harassment did not come before the appellate court. (See NYSCEF No. 176, at 1.) That is not correct. The order in which trial court Justice Diamond explained the grant of injunctive relief was not before the court on appeal, because it was subsumed in the final judgment in the case. But the final judgment included an injunction against witness harassment (see Kalyanaram, 2007 WL 8307431, at *2 [Sup Ct, NY County Nov. 15, 2007]); the propriety of that injunction was contested on appeal (see Brief for Respondent-Respondent at 31-32, Kalyanaram, 2008 WL 8156919 [1st Dept Dec. 10, 2008]); and the First Department expressly affirmed the grant of injunctive relief (see Kalyanaram, 63 A.D.3d at 435).
Accordingly, for the foregoing reasons it is
ORDERED that upon service of a copy of this order with notice of entry, Norman Resnicow is enjoined and restrained, during the pendency of this action, from doing or suffering to be done, directly or through his wife, his attorney, or any other third party, any of the following acts:
(i) Entering Theroux's property without permission;
(ii) Harassing, intimidating, threatening, or in any way influencing witnesses and prospective witnesses who have given, or may give, testimony in this action;
(iii) Communicating, orally or by written or any other means, with Bradley Calcaterra, David McCorkle, Tim Walch, or Richard Porras about the present action, without written prior permission from their attorneys; and
(iv) Using abusive language or posture in communications, orally or by written or any other means, with any resident of 71 Washington place, all of whom are potential witnesses in this action;
and it is further
ORDERED that Theroux serve a copy of this order with notice of entry upon all parties.