Zipper vs. Haroldon Court Condominium

This is a clear case where the appellate court strongly disagreed with the conclusion of the trial court. Although lower courts are usually reversed on legal errors, the reversal here seems based in large measure on the facts: a strongly divergent view of the impact of the stench and odors and an evaluation of the extent of the odor level that constituted a nuisance.

In Zipper vs. Haroldon Court Condominium, the owner of a condominium unit, Sheila Zipper, brought an action seeking to evict her tenant, Rebecca Rosenbaum, on the grounds that she had created a nuisance in her Manhattan apartment. Following a non-jury trial, the Supreme Court dismissed the claim and granted tenant’s motion for attorneys’ fees. The owner appealed to the appellate division of the Supreme Court.

In analyzing the case, the appellate court said that the trial court’s finding that Rosenbaum did not create a nuisance warranting her eviction appears to have been based upon an unreasonable and unsupportable finding that the odors complained of were only occasional and of the type that are unavoidable in close city quarters, an “inescapable reality of urban life.” To the contrary, in the view of the higher court, all the credible testimony regarding the odors that emanated from Rosenbaum’s apartment indicated that they were not of the unavoidable variety but of a type caused by matter that should not be kept in an apartment, such as rotting food. The testimony of Rosenbaum’s witnesses, who denied the presence of any such odors, was refuted by the disinterested testimony of two firefighters regarding their unannounced visit to the apartment just one month before trial. Their testimony corroborated plaintiffs’ claims of ongoing noxious odors by confirming that on that visit the apartment emanated shockingly foul odors. Even though the stench may have dissipated somewhat once the apartment door was closed, that fact was of little consequence. Bad odors, while much worse at the source, generally continue to permeate the vicinity of their source, remaining noticeable in varying degrees. To reject claims of recurring odor problems as it did, the trial court had to conclude that the stench noticed by the firefighters coincidentally happened to be present on the day of their visit and was a rare event. Such a conclusion strained credulity. Indeed, the court’s rejection of the nuisance claim in effect imposed on plaintiffs and the condominium defendants a burden beyond that imposed by law, and impossible to satisfy, of proving only through neutral witnesses the ongoing occurrence of objectionable conduct. The court found that the credible testimony clearly established the claimed presence of an unacceptable level of odor constituting a nuisance and warranting eviction.

Further support for the finding of nuisance was provided by the testimony of the fire department’s Lieutenant Meehan as to the condition of the apartment, which was dangerously cluttered with furnishings, boxes, and debris. Although the trial court simply directed Rosenbaum to cure the condition, it was significant that, in previous litigation years earlier, the court had taken extraordinary measures in an effort to assist Rosenbaum in curing the same condition so as to avoid eviction. Evidently, said the court, the problem had not been solved and could not be solved with a directive such as the trial court included in its order.

Moreover, although the plaintiffs and the condominium defendants were unable, without Rosenbaum’s cooperation, to clearly establish by direct evidence the cause or source of the many water leaks into the apartment below Rosenbaum’s, the testimony regarding prior incidents and observations indicating that, over the years, Rosenbaum had created or allowed flooding conditions to occur in her own apartment. While this alone would not be enough for a finding of nuisance, in conjunction with the other evidence, it did support that finding. So, too, did the testimony regarding the cockroach infestation in Rosenbaum’s apartment and the trash she deposited, even if it did not actually create a building-wide infestation. The court concluded that the eviction therefore should have been granted. The award of attorney fees to Rosenbaum was rejected. The plaintiffs’ claim for an abatement of common charges was properly transferred to civil court.