London Leasing v Borrero

[*1] London Leasing v Borrero 2018 NY Slip Op 50966(U) Decided on June 12, 2018 Civil Court Of The City Of New York, Queens County Lansden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2018
Civil Court of the City of New York, Queens County

London Leasing, Petitioner-landlord,

against

Betsy Borrero, Respondent-tenant, TOUMA S. ANTONIO, "JOHN DOE" and/or "JANE DOE" Respondent-undertenants.



50678/18
John S. Lansden, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to Show Cause and Affidavits Annexed

Notice of Motion and Affidavits Annexed 1

Notice of Cross-Motion and Affidavit Annexed

Answering Affidavits 2

Replying Affidavits 3

Exhibits

OtherMemoranda of Law

Upon the foregoing cited papers, and all the pleadings herein, the Decision/Order on this Motions are as follows:

PROCEDURAL HISTORY

The instant holdover proceeding alleged that Respondent's guest committed a nuisance which allowed Petitioner to terminate the lease between Respondent and Petitioner for apartment 14A located in 96-02 57th Ave, Corona, New York 11368. Respondent moved for summary judgment. Motion practice was entered. After oral arguments on April 11, 2018, and submission of all papers, the court reserved decision.

STANDARD OF REVIEW

A party is entitled to summary judgment where there is no triable issue of fact or law and as a matter of law, the judgment should be in favor of the movant party. CPLR §3212(b); Friends of Animals v. Associated Fur, 390 N.E.2d 298, 298 (NY 1979). If there is any doubt as to the existence of a triable issue, summary judgment should not be granted. Glick & Dolleck, Inc v. Tri-Pk Export Corp., 239 N.E.2d 725, 726 (NY 1968). The Court's function is not to determine the credibility of the parties but to determine if there exists a triable issue or, if arguably, there is an issue of fact. S.J Capelin Assocs. Inc. v. Glob. Mfg. Corp., 313 N.E.2d 776, 777 (NY 1974)

The party moving for summary judgment has the burden of establishing that there is no triable issue of fact. Alvarez v. Prospect Hosp., 502 N.E.2d 572, 573 (NY 1986).

ANALYSIS

According to Rent Stabilization Code § 2524.3(b):

" A landlord may recover possession of a property if the tenant is committing or permitting a nuisance in 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 for which is intended to harass the owner or other tenants."

Courts have construed nuisance narrowly. Domen Holding Co. v. Aranovich,753 N.Y.S.2d 57, 58 (NY App. Div. 2003). Courts have generally held that single incidents of objectionable conduct will likely be insufficient to establish nuisance. Id at 59. Usually a nuisance involves the idea of continuity or recurrence; some degree of permanence is an essential element of the concept of nuisance. Id at 60. However, there is no strict quantitative test as to how many incidents would warrant a claim of nuisance. Metropolitan Life Ins. Co. v. Moldoff, 63 N.Y.S.2d 385, 385 (NY App. Div. 1946). The court must weigh the quantitative and qualitative aspects under a specific set of facts to determine whether a nuisance occurred. Id at 386. Case law also holds that a tenant may be held responsible for a nuisance created by other occupants of the tenant's premises which the tenant fails to take meaningful steps to curtail. Domen Holding Co. v. Aranovich,753 N.Y.S.2d 57, 58 (NY App. Div. 2003).

Petitioner alleges in its notice of termination that Respondent's guest kicked a glass door out of frustration and broke the glass causing damage to the property. Respondent has been living in the property for ten years without any other prior incident. In the notice of termination, Petitioner fails to mention another incident of violence or outrageous behavior on the part of Respondent or Respondent's guest that would lead the Court to believe that a pattern has or could occur and thus interfere with the health and comfort of those residing in the property.

Petitioner argues that a nuisance can be "a pattern of persistent and continuing course of conduct" or "where tenant is damaging the housing accommodation." Rent Stabilization Code §2524. However, Petitioner omits the word "substantial damage" from its argument. Courts have not clearly defined what "substantial damage" entails. The courts have held that a tenant who started two fires rose to the level of nuisance. 177 East 90th Street Corp. v. Niemela, 453 N.Y.S.2d 567, 568 (NY Civ. Ct. 1982). Courts have also held that allowing a bathroom toilet to overflow on several occasions, causing water to flood into the apartment below is a nuisance. Matter of Chi-Am Realty, LLC v. Guddahl, 823 N.Y.S.2d 458, 459. (NY App. Div. 2006). See also Ocean Neck Apts. Co., LLC v. Weissman, 829 N.Y.S.2d 407,408 (NY App. Div. 2006) (holding that four occasions of flooding within seven weeks into the apartment directly below tenant's, together with tenant's denial of access to landlord was sufficient to establish a nuisance); see 17th Holding, LLC v. Rivera, 871 N.Y.S.2d 585, 587 (NY App. Div. 2008) (holding that tenant's son and/or his guests writing graffiti throughout the building constitutes a nuisance). However, in Madison Central the court held that tenant's single act of kicking and scratching an elevator door was not enough to constitute a nuisance. Madison Cent. Corp. v. Weider, 91 N.Y.S.2d 437, 438 (NY App. Div. 1949).

The Court agrees with Respondent that this case is similar to the facts in Madison Central. Respondent's guest's single act of kicking the glass door does not constitute substantial damage to the property and does not rise to the level of nuisance. Though, it is clear that [*2]Respondent would be responsible for monetary damages.

Petitioner also argues that Respondent's guest's actions was intended to harass the owner or other tenants. This argument is unconvincing. In the present case, there is no indication that Respondent's guest's action was the result of trying to harass the owner as opposed to a childish outburst of not getting what he wanted. Nothing in the notice of termination indicates that Respondent's guest has engaged in similar behavior previously or had any prior interactions with the landlord. Nor is the kicking incident alone severe enough, like shooting a guest, to rise to the level of violent behavior as described in the statute. Courts have held that a tenant that creates loud banging noises, yells, intimidates, verbally harasses fellow residents, inflicts vicious retribution against other tenants for the slightest infraction of noise on several occasions, is harassing behavior that interferes with the safety and ordinary use and enjoyment of other tenant's apartment. Pinehurst Constr. Corp. v. Schlesinger, 833 N.Y.S.2d 428, 429 (NY App. Div. 2007). On the other hand, courts have also held that a tenant hitting a building employee once with a screwdriver was not enough to constitute a nuisance. Pelham 1130 Llc v. Cause, 2017 NYLJ LEXIS 2081.

In Pelham, petitioner only showed that the instant at issue was the only instance of respondent's violent behavior. The court concluded that although the behavior was unconscionable, it did not rise to the level of nuisance required by the statute. Id.

Respondent's guest claimed that he was frustrated at the fact that another tenant did not hold the door open for him while his hands were filled with bags and he did not have a key fob. Like the petitioner in Pelham, Petitioner here only proved this one-time incident of Respondent's guest's violent behavior. Furthermore, Respondent's guest's behavior was not targeted at anyone. Respondent's guest did not attempt to hit or assault anyone in particular. Respondent's guest could have easily assaulted the other tenant, but instead he took out his frustration on the glass door. This action although unacceptable, does not rise to the level of harassing behavior whose primary purpose is intended to harass the owner or others or interfere with their common enjoyment of the premises.

CONCLUSION

Based on the foregoing, the Court determines that Summary Judgment should be granted in favor of Respondent, because Petitioner has not raised a triable issue of fact. Proceeding is dismissed. This constitutes the decision/order of the court.

June 12, 2018

Queens, New York

___________________

John S. Lansden, J.H.C.