Pan & Kuo Realty Corp. v Foulkes

[*1] Pan & Kuo Realty Corp. v Foulkes 2018 NY Slip Op 50395(U) Decided on March 26, 2018 City Court Of Mount Vernon, Westchester County Armstrong, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2018
City Court of Mount Vernon

Pan & Kuo Realty Corporation, Petitioner,

against

Earl Foulkes, Respondent.



0458-18



William M. Permutt, Esq.

Attorney for Petitioner

571 White Plains Road

Eastchester, New York 10709

Earl L. Foulkes

Pro-se Respondent
Adrian N. Armstrong, J.

In this holdover proceeding, the petitioner-landlord seeks to recover possession of Apartment C7 at 660 Locust Street in Mount Vernon, Westchester County from the respondent-tenant who, according to petitioner, has lived in this apartment since September 15, 2011. This proceeding is predicated on a "30 Day Notice to Terminate" dated December 19, 2018 (sic), annexed to and incorporated by reference in the petition, which notified the tenant that unless he moved out of the premises by January 31, 2018 the landlord would commence summary proceedings to remove him. The tenant remained in possession of the premises without permission of the petitioner after the expiration of said term.

In the Notice of Termination, petitioner notified respondent that it "elects to terminate your tenancy" on the grounds that the tenant was creating a nuisance and engaging in a persistent and continuing course of conduct an unwarrantable, unreasonable and unlawful use of the property, to the annoyance, inconvenience, discomfort and damage of others, the primary purpose of which is intended to harass other tenants by interfering substantially with their comfort or safety. Additionally, the Notice alleged that despite being warned, the tenant: 1) made unwanted sexual advances and comments to other tenants; 2) was ringing neighbors doorbells and going to their doors despite repeated requests to not do so; 3) delivered unwanted notes to neighbors; and 4) made threatening gestures to female residents of the building.

Petitioner called five witnesses at the non-jury trial held on March 20, 2018. Lillian Chu, the office manager for the petitioner testified that several tenants had called her saying they were upset with the respondent. The first complaint she received was approximately four years ago from tenants who were moving out, and those tenants informed her that part of the reason they were moving was the respondent's harassing behavior towards them. Ms. Chu further testified that she also received other complaints pertaining to the respondent in 2016 and 2017. These complaints from other tenants in the building centered on the respondent stalking, menacing and/or making sexual advances towards them. Ms. Chu stated that when she would receive these complaints, she referred them to James Kuo, a principal of the petitioner. On cross examination she admitted that she personally never had a conversation with the respondent regarding the complaints lodged against him.

Mr. Kuo testified that after receiving the aforementioned complaints from tenants residing in the building, he would speak to the respondent in an effort to resolve the complaints. He stated that the respondent usually responded to him by denying the allegations, and would then complain about the complaining tenants, who either lived directly above him, or next to him.

The first tenant to testify against the respondent, was Amanda Sade Dash, who resides in Apartment D7 located directly above the respondent's apartment. She testified that in the early morning of September 18, 2017, while walking outside of the subject building on her way to the train station, she looked up and saw the respondent standing in front of his window making a clapping noise to get her attention, and then hitting his fist into his other hand which scared her. She further testified that the following morning on her way to work, she again looked up to the front of her building and saw the respondent in his window making gestures to her, which she inferred meant that he wanted her to wait for him. She then saw him run from his window so she hurriedly walked to the train station a few blocks away. She noticed that the respondent was following her in his vehicle. She further testified that when she arrived at the train station the respondent waved to her to come to where he was parked. She stated that she ignored his call to her. Later that day she reported the incidents to the Mount Vernon Police Department. She revealed that she was informed by the investigating officers that no criminal charges would be brought against the tenant since there were no threats made by the respondent against her. Mr. Foulkes testified that he did see Ms. Dash from his window on the aforementioned dates but his hand gestures were to inform her of his annoyance at her making loud noises in her apartment. He also acknowledged being in his vehicle the morning that Ms. Dash said he followed her to the train station, however, he testified that he never saw her by the train station, nor did he beckon for her to come to his vehicle. He claims that he was in his vehicle in the early morning hours at that location only to move his vehicle to a legal parking space in that area.

Mr. Foulkes further testified that after the incident with Ms. Dash, he reluctantly signed an agreement (Petitioner's 1 in Evidence) dated September 20, 2017, in order to prevent any misunderstanding, he agreed he would not approach, contact, make gestures, and/or talk to Ms. Dash. Subsequent to the signing of this agreement, Ms. Dash testified that on November 28, 2017, while walking in front of the subject building, [*2]she saw Mr. Foulkes in his apartment window waving his hands towards her. She further testified that she continues to feel unsafe and uncomfortable living in the same building with Mr. Foulkes.

Wendy Thompson testified that she moved next door to Mr. Foulkes in Apartment C8, in 2012. She stated that the tenant introduced himself to her as her neighbor and asked her out for drinks. She stated that she informed him that she wasn't interested. Sometime in 2016, she states that the respondent slid a note under her apartment door, and on one side it read, if I'm scaring you tear this up, and on the other side of the note read, if I'm not scaring you it listed both the respondent's apartment and telephone number. Ms. Thompson stated that two days later she received another note under her door from the respondent which indicated that he would like the two of them to be friends, and that he's been liking her for a long time. She testified that she thought the tenant's conduct was creepy, and wrote a note placing it under his door, informing him that she had a boyfriend, and wanted him to leave her alone. Months later in August of 2016 she stated that when she was leaving her apartment, she saw the respondent outside of his apartment staring at her. Ms. Thompson further testified that she feels unsafe living in the building with Mr. Foulkes.

Mr. Foulkes testified that he admittedly was attracted to Ms. Thompson, but after she rebuffed his advances he's had no contact with her. He adamantly denies staring at her in August of 2016, and complained that Ms. Thompson oftentimes bangs on the wall between their apartments to get his attention.

The last tenant to testify against Mr. Foulkes was his other next door neighbor, Millicent Brown who lives in Apartment C6. She testified that beginning in 2015, Mr. Foulkes complimented her on her looks when he saw her in the building, and constantly would knock on her apartment door seeking to speak with her. She stated that she never let him into her apartment, and in response to his comments would tell him that she was not interested in him. On one occasion she testified that he complimented her on a part of her anatomy, and then told her in vulgar language that it excited him. She further stated that while walking in the neighborhood, she would occasionally see Mr. Foulkes following her in his vehicle. She stated that she has informed the landlord that Mr. Foulkes makes her feel unsafe coming into the building.

Mr. Foulkes testified that he is not attracted to Ms. Brown, and has never asked her out. He further testified that he has never followed her in the neighborhood while driving his vehicle. He claims that this neighbor also bangs on their adjoining apartment wall, disturbing his peace.

Pursuant to Emergency Tenant Protection Regulations § 2504.2 (b), nuisance is a specifically delineated ground for terminating a tenancy, but a notice to cure is a prerequisite to the commencement of a proceeding to recover possession on that ground (see ETPR § 2504.1 [d] [1] [I). The notice to cure must state the wrongful act or omission of the tenant and the facts necessary to establish the existence of the wrongful act or omission (id.).

In this proceeding, which is premised upon a nuisance theory, no notice to cure has been served. The petition recites allegations deriving from conduct from around 2014 though November 2017. A portion of petitioner's allegation is that the tenant is creating a nuisance in the building and/or having engaged in a course of conduct the [*3]primary purpose of which is intended to harass other tenants of the subject building by substantially interfering with their safety and comfort. The petition asserts that these actions are not curable, and therefore a notice to cure is not required ( ETPR § 2504.2[i].

Landlord's contention that a notice to cure in this action was not required, is unavailing. The nuisance complained of, offensive behavior against other building tenants, is indistinguishable from "objectionable conduct" as that term is defined in the parties' lease. Objectionable conduct means "anything which interferes with the right of others to properly and peacefully enjoy their Apartments, or causes conditions that are dangerous ...[or] detrimental to the other tenants in the Building (Par. 12 of lease dated September 13, 2011).

Respondent's lease establishes that the failure "to carry out any agreement or provision of this lease" constitutes a default, and that such a default entitles the owner to serve the tenant "with a notice to stop or correct the specified default within 10 days." The lease recognizes that some defaults may be incapable of correction within that ten day period, and provides for more than one means of curing defaults. A tenant in default under the lease must "either stop or correct the default within 10 days, or if You need more than ten days, You must begin to correct the default within 10 days and continue to do all that is necessary to correct the default as soon as possible." Respondent's lease not only provides a cure period for defaults capable of cure within ten days, but also for defaults that, by their nature, cannot be cured within a ten day period (Par. 17 of lease). "Petitioner unilaterally determined not to serve a notice to cure, deprived respondent of the opportunity to attempt a cure by doing so, and appropriated a determination properly within the province of the court: whether cure was possible, and if so, whether a cure had occurred" (see Herald Towers LLC v Perry, 190 Misc 2d 500 [Civil Court, NY County, 2001]).

Since service of a notice to cure was a prerequisite to this holdover proceeding, and petitioner has conceded that no such notice was served, the petition is rendered defective.

Even assuming petitioner could simply proceed without having served a notice to cure it would be questionable as to whether it could establish a nuisance. "A nuisance is a condition that threatens the comfort and safety of others in the building" (Frank v Park Summit Realty Corp., 175AD2d 33, 35 [1991]). If a landlord demonstrates a continuous invasion of rights, or a recurrence of objectionable conduct, it will have made out a nuisance cause of action (see Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38 [2011]; Frank, 175 AD2d 33; Pefko Realty, LLC v Nissim, 34 Misc 3d 129 [A], 2011 NY Slip Op 52304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). The leading case concerning nuisance in a landlord-tenant context is Domen Holding Co. v Aranovich (1 NY3d 117 [2003]), wherein the Court of Appeals defined nuisance as follows:

To constitute a nuisance the use of property must interfere with a person's interest in the use and enjoyment of land. The term "use and enjoyment" encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance. However, not every annoyance will constitute a nuisance. Nuisance imports a continuous invasion of rights—"a pattern of continuity or recurrence of objectionable conduct." Domen Holding Co., 1 NY3d [*4]at 123-124 (internal citations omitted).

Domen was predicated on alleged incidents of verbal altercations and physical threats engaged in by the tenant's occupant directed at other tenants in the building. Three incidents were specifically detailed, while an unspecified number of other, undetailed incidents were also alleged. The altercations were alleged to have taken place over a period of five years, with the third (most recent) incident occurring more than three years after the second incident.

The Appellate Division had affirmed dismissal of the complaint, holding that the landlord's allegations of three incidents in five years did not, as a matter of law, constitute a nuisance warranting the tenant's eviction (Domen Holding Co. v Aranovich, 302 AD2d 132, 136 [1st Dept 2003], revd 1 NY3d 117 [2003]). But the Court of Appeals reversed, noting that even though the alleged incidents occurred over five years "their severity and circumstances under which they allegedly took place tend to support plaintiff's contention that [the occupant] displays intolerance and aggression toward those living and working within the building. The allegations further may suggest that [the occupant] is easily incensed and prone to violent outbursts from time to time and, therefore, his continued residency in the building places the comfort and health of other in the building at a constant risk" (Domen Holding Co., 1 NY3d at 124-125).

"A finding of nuisance has qualitative as well as quantitative aspects" ( Domen Holding Co., 302 AD2d at 134-135, revd on other grounds 1 NY3d 117 [2003]). Whether conduct constitutes nuisance also depends on the context in which place the conduct is taking place.

Although the picture developed from the testimony presents Mr. Foulkes as a flirtatious, socially awkward and perhaps slightly unstable individual, the greater portion of the testimonial evidence from other tenants in the building and the management staff did not rise to the level of a nuisance. This Court means in no way to condone Mr. Foulkes behavior, but simply concludes that in the context of this case the testimonial evidence does not either qualitatively or quantitatively meet the high threshold for a finding of nuisance. Moreover, the law disfavors forfeiture of tenancies except under exceptional circumstances which do not exist in the present matter (see, J.N.A. Realty Corp. v Cross Bay Chelsea, Inc., 42 NY2d 392, 397 [1977]; CHI-AM Realty, Inc. v Guddahl, 7 Misc 3d 54, 58 [App Term, 2d Dept. 2005]).

Accordingly, the proceeding is dismissed for the reasons set forth above.

Dated: March 26, 2018

Mount Vernon, New York

__________________________

HON. ADRIAN N. ARMSTRONG