Landlord & Tenant

Threatening Behavior By Tenants Insufficient To Support Eviction

Domen Holding Co. v. Aranovich

NYLJ 1/14/03, p. 18, col. 1

AppDiv, First Dept

(3-2 decision; majority opinion by Tom, J; dissenting opinion by Friedman, J.)

In landlord's ejectment action premised on tenants' nuisance, landlord appealed from Supreme Court's grant of tenants' summary judgment motion. The Appellate Division affirmed, concluding that three incidents of threatening behavior by a resident non-lessee were insufficient, as a matter of law, to support an eviction for nuisance.
Tenant-occupant and her non-resident brother are the named lessees of the subject apartment. Sanders, who is not a lessee, lives in the apartment with tenant-occupant. On November 8, 1995, Sanders was involved in an altercation with the building superintendent. At that time, landlord's agent wrote to tenant-occupant indicating that it was his understanding that 'this is not the first incident regarding this individual' and that legal proceedings would be initiated if another incident should occur. On June 7, 1997, Sanders was alleged to have verbally abused and physically threatened the visually-impaired tenant of another apartment, resulting in the filing of a criminal harassment complaint against Sanders. Finally, in August 2000, Sanders allegedly directed physical threats and racial epithets against the building's doorman, resulting in a call to the police and another complaint against Sanders. Then, in October 2000, landlord served tenants with a notice of termination, alleging that they had permitted a nuisance to exist by condoning a pattern of anti-social conduct by Sanders. Supreme Court granted tenants' summary judgment motion. Landlord appealed.

In affirming, the Supreme Court majority characterized nuisance as a continuing or recurrent pattern of objectionable conduct, or a condition that threatens the comfort and safety of others in the building. The court noted that single isolated incidents, even if serious, did not merit eviction based on an alleged nuisance. The court went on to conclude that three incidents spread over a 5-year period do not constitute a continuous or chronic pattern of obnoxious conduct sufficient to constitute a nuisance. In addition, the court concluded that the incidents involved in this case did not qualitatively satisfy the exacting standards for nuisance. The majority expressed a concern that a ruling that these three incidents could escalate into a basis for eviction would have a chilling effect on tenants in the city. As a result, the majority concluded that Supreme Court had properly granted summary judgment to tenants.

The dissenting justices disagreed, concluding that the case presented questions of fact that should have precluded summary judgment. The dissenters noted that the incidents involved 'manifested a proclivity for aggression against others' and were sufficient to raise triable questions of fact. The dissenters contended that intolerable conduct, even if alleged to have occurred intermittently over a number of years, still could be sufficient to support a nuisance claim.  The emphasized that a landlord should be able to take action to protect other residents and building personnel without waiting for a fourth or fifth incident to occur.

COMMENT

New York City's Rent Stabilization Code authorizes eviction where 'the tenant is committing or permitting a nuisance; 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' (9 NYCRR ' 2524.3[b]). Moreover, Real Property Law section 231.1 voids the lease of property used or occupied for 'any illegal trade, manufacture, or other business.' Courts have consistently held that these statutes require a pattern of conduct, thereby protecting the tenant in the event of a one-time, isolated incident. Courts are quicker to find patterns of conduct where the behavior in question is criminal or dangerous as opposed to merely annoying.

Thus, in Kings County D.A. v. Freshley 160 Misc.2d 302, the court found that three sales from a modest stash of crack stashed in tenant's apartment were more than sufficient to establish the continuity necessary for tenant's eviction. The court was careful to note, however, that a single, isolated activity would remain insufficient to establish an illegal use. Similarly, in 177 East. 90th St. Co. v. Niemela, 115 Misc.2d 189, the court held landlord was entitled to go to trial on allegations that a mentally disturbed respondent tenant started a fire in his apartment on two separate occasions within a 3-year span. The court emphasized the high degree of danger associated with the alleged conduct.

By contrast, in Smalkowski v. Vernon 2001 N.Y. Misc. Lexis 456 the court refused to find a sufficient pattern to evict tenant despite a series objectionable incidents including, continuous night-time noise, heavy garbage pileup, and creation of a fire hazard. The court held that the garbage pileup and candelabra hazard were isolated incidents that merely held potential, and not inherent danger. The court further noted that despite the likely annoyance that a 2-week duration of noise would constitute, it was still insufficient to be characterized as a pattern of objectionable behavior.

Two NonContiguous Buildings On Same Lot Do Not Constitute Horizontal Multiple Dwelling
259 4th Avenue, LLC v. Williams

NYLJ 1/27/03, p. 21, col. R

Civil Ct., Kings Cty

(Pinckney, J.)

In landlord's two consolidated holdover proceedings, two separate tenants moved to dismiss on the ground that landlord's two buildings together constituted a horizontal multiple dwelling, entitling tenants to rent stabilization protection. The court denied tenants' motion, holding that although the buildings shared electric and water services, they did not constitute a single horizontal multiple dwelling.

Landlord owns two buildings with a common address. The front building contains two residential units. The rear building, separated from the front building by an open space with a depth of 21 feet, contains four apartments. Landlord served one tenant in the front building and one in the rear building with notices of termination, alleging in each case that tenant was a month-to-month tenant whose lease had expired. Landlord then brought these holdover proceedings.  In each proceeding, tenant argued that the two buildings together constituted a horizontal multiple dwelling, and that because the combined dwelling contained six units, the dwelling was subject to rent stabilization protection, which limits landlord's right to remove tenants.

In rejecting tenants' argument, the court stressed that few services were shared between the buildings and that the buildings were absolutely separated physically. These factors, in the court's view, precluded treatment as a horizontal multiple dwelling even though the buildings had been held in common ownership since 1908.  As a result, the court declined to dismiss the holdover proceedings.

COMMENT

Rent stabilization regulations apply to class A multiple dwellings with six or more dwelling units. (Rent Stabilization Law section 26-504) Under section 26-505, buildings are deemed to include six or more units if they form part of a 'garden-type maisonette dwelling complex' containing six or more units. The Court of Appeals in Matter of Salvati v. Eimike 72 NY2d 784, determined that the Rent Stabilization law applied to other horizontal multiple dwellings other than the garden type complexes described in 26-505.

Most horizontal multiple dwelling cases involve contiguous buildings that share both common ownership and common facilities. Courts appear reluctant to treat non-contiguous buildings as horizontal multiple dwellings. Thus, in O'Reilly v. DHCR, 291 A.D.2d 252, the court held that DHCR had properly upheld a determination by the administrative law judge that a free-standing building was not part of a horizontal multiple dwelling even though the buildings shared heating facilities. The court emphasized that there was no inside passageway between the buildings, and that there was no other connection between the buildings.

Threatening Behavior By Tenants Insufficient To Support Eviction

Domen Holding Co. v. Aranovich

NYLJ 1/14/03, p. 18, col. 1

AppDiv, First Dept

(3-2 decision; majority opinion by Tom, J; dissenting opinion by Friedman, J.)

In landlord's ejectment action premised on tenants' nuisance, landlord appealed from Supreme Court's grant of tenants' summary judgment motion. The Appellate Division affirmed, concluding that three incidents of threatening behavior by a resident non-lessee were insufficient, as a matter of law, to support an eviction for nuisance.
Tenant-occupant and her non-resident brother are the named lessees of the subject apartment. Sanders, who is not a lessee, lives in the apartment with tenant-occupant. On November 8, 1995, Sanders was involved in an altercation with the building superintendent. At that time, landlord's agent wrote to tenant-occupant indicating that it was his understanding that 'this is not the first incident regarding this individual' and that legal proceedings would be initiated if another incident should occur. On June 7, 1997, Sanders was alleged to have verbally abused and physically threatened the visually-impaired tenant of another apartment, resulting in the filing of a criminal harassment complaint against Sanders. Finally, in August 2000, Sanders allegedly directed physical threats and racial epithets against the building's doorman, resulting in a call to the police and another complaint against Sanders. Then, in October 2000, landlord served tenants with a notice of termination, alleging that they had permitted a nuisance to exist by condoning a pattern of anti-social conduct by Sanders. Supreme Court granted tenants' summary judgment motion. Landlord appealed.

In affirming, the Supreme Court majority characterized nuisance as a continuing or recurrent pattern of objectionable conduct, or a condition that threatens the comfort and safety of others in the building. The court noted that single isolated incidents, even if serious, did not merit eviction based on an alleged nuisance. The court went on to conclude that three incidents spread over a 5-year period do not constitute a continuous or chronic pattern of obnoxious conduct sufficient to constitute a nuisance. In addition, the court concluded that the incidents involved in this case did not qualitatively satisfy the exacting standards for nuisance. The majority expressed a concern that a ruling that these three incidents could escalate into a basis for eviction would have a chilling effect on tenants in the city. As a result, the majority concluded that Supreme Court had properly granted summary judgment to tenants.

The dissenting justices disagreed, concluding that the case presented questions of fact that should have precluded summary judgment. The dissenters noted that the incidents involved 'manifested a proclivity for aggression against others' and were sufficient to raise triable questions of fact. The dissenters contended that intolerable conduct, even if alleged to have occurred intermittently over a number of years, still could be sufficient to support a nuisance claim.  The emphasized that a landlord should be able to take action to protect other residents and building personnel without waiting for a fourth or fifth incident to occur.

COMMENT

New York City's Rent Stabilization Code authorizes eviction where 'the tenant is committing or permitting a nuisance; 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' (9 NYCRR ' 2524.3[b]). Moreover, Real Property Law section 231.1 voids the lease of property used or occupied for 'any illegal trade, manufacture, or other business.' Courts have consistently held that these statutes require a pattern of conduct, thereby protecting the tenant in the event of a one-time, isolated incident. Courts are quicker to find patterns of conduct where the behavior in question is criminal or dangerous as opposed to merely annoying.

Thus, in Kings County D.A. v. Freshley 160 Misc.2d 302, the court found that three sales from a modest stash of crack stashed in tenant's apartment were more than sufficient to establish the continuity necessary for tenant's eviction. The court was careful to note, however, that a single, isolated activity would remain insufficient to establish an illegal use. Similarly, in 177 East. 90th St. Co. v. Niemela, 115 Misc.2d 189, the court held landlord was entitled to go to trial on allegations that a mentally disturbed respondent tenant started a fire in his apartment on two separate occasions within a 3-year span. The court emphasized the high degree of danger associated with the alleged conduct.

By contrast, in Smalkowski v. Vernon 2001 N.Y. Misc. Lexis 456 the court refused to find a sufficient pattern to evict tenant despite a series objectionable incidents including, continuous night-time noise, heavy garbage pileup, and creation of a fire hazard. The court held that the garbage pileup and candelabra hazard were isolated incidents that merely held potential, and not inherent danger. The court further noted that despite the likely annoyance that a 2-week duration of noise would constitute, it was still insufficient to be characterized as a pattern of objectionable behavior.

Two NonContiguous Buildings On Same Lot Do Not Constitute Horizontal Multiple Dwelling
259 4th Avenue, LLC v. Williams

NYLJ 1/27/03, p. 21, col. R

Civil Ct., Kings Cty

(Pinckney, J.)

In landlord's two consolidated holdover proceedings, two separate tenants moved to dismiss on the ground that landlord's two buildings together constituted a horizontal multiple dwelling, entitling tenants to rent stabilization protection. The court denied tenants' motion, holding that although the buildings shared electric and water services, they did not constitute a single horizontal multiple dwelling.

Landlord owns two buildings with a common address. The front building contains two residential units. The rear building, separated from the front building by an open space with a depth of 21 feet, contains four apartments. Landlord served one tenant in the front building and one in the rear building with notices of termination, alleging in each case that tenant was a month-to-month tenant whose lease had expired. Landlord then brought these holdover proceedings.  In each proceeding, tenant argued that the two buildings together constituted a horizontal multiple dwelling, and that because the combined dwelling contained six units, the dwelling was subject to rent stabilization protection, which limits landlord's right to remove tenants.

In rejecting tenants' argument, the court stressed that few services were shared between the buildings and that the buildings were absolutely separated physically. These factors, in the court's view, precluded treatment as a horizontal multiple dwelling even though the buildings had been held in common ownership since 1908.  As a result, the court declined to dismiss the holdover proceedings.

COMMENT

Rent stabilization regulations apply to class A multiple dwellings with six or more dwelling units. (Rent Stabilization Law section 26-504) Under section 26-505, buildings are deemed to include six or more units if they form part of a 'garden-type maisonette dwelling complex' containing six or more units. The Court of Appeals in Matter of Salvati v. Eimike 72 NY2d 784, determined that the Rent Stabilization law applied to other horizontal multiple dwellings other than the garden type complexes described in 26-505.

Most horizontal multiple dwelling cases involve contiguous buildings that share both common ownership and common facilities. Courts appear reluctant to treat non-contiguous buildings as horizontal multiple dwellings. Thus, in O'Reilly v. DHCR, 291 A.D.2d 252, the court held that DHCR had properly upheld a determination by the administrative law judge that a free-standing building was not part of a horizontal multiple dwelling even though the buildings shared heating facilities. The court emphasized that there was no inside passageway between the buildings, and that there was no other connection between the buildings.