Case Notes in

Nuisance

First published: Jun 2021
Dubin v. Glasser

The standard New York cooperative proprietary lease does not expressly state that a tenant-shareholder is a third-party beneficiary of another tenant-shareholder’s lease with the cooperative corporation. Therefore, if a board fails to take action against a shareholder for violation of the proprietary lease or house rules, another shareholder cannot independently bring his or her own action against a shareholder. In addition, the standard lease has a provision that states the co-op is not responsible to the lessee for the non-observance of the lease or house rules. Thus, to remedy a bad situation, the shareholder in a cooperative is dependent on the board to enforce the lease provisions and house rules. If the board refuses, based on the Ran v. Weiner decision, there is nothing for the injured shareholder to do. (Interestingly, the Condominium Act would allow an aggrieved condo unit-owner to bring an action if the condo board does not, but there is no such parallel provision in any laws applicable to cooperatives.) But perhaps the door has opened slightly by the decision in Dubin v. Glasser. Perhaps common practice in cooperatives will change. Stay tuned, as we may not have heard the last of this from the courts. A shareholder may indeed have the right to enforce the lease or house rules when the board refuses.

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First published: Jun 2021
Dubin v. Glasser

The standard New York cooperative proprietary lease does not expressly state that a tenant-shareholder is a third-party beneficiary of another tenant-shareholder’s lease with the cooperative corporation. Therefore, if a board fails to take action against a shareholder for violation of the proprietary lease or house rules, another shareholder cannot independently bring his or her own action against a shareholder. In addition, the standard lease has a provision that states the co-op is not responsible to the lessee for the non-observance of the lease or house rules. Thus, to remedy a bad situation, the shareholder in a cooperative is dependent on the board to enforce the lease provisions and house rules. If the board refuses, based on the Ran v. Weiner decision, there is nothing for the injured shareholder to do. (Interestingly, the Condominium Act would allow an aggrieved condo unit-owner to bring an action if the condo board does not, but there is no such parallel provision in any laws applicable to cooperatives.) But perhaps the door has opened slightly by the decision in Dubin v. Glasser. Perhaps common practice in cooperatives will change. Stay tuned, as we may not have heard the last of this from the courts. A shareholder may indeed have the right to enforce the lease or house rules when the board refuses.

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First published: Sep 2019
Leon v Harlan

The reason this case is important is not because it breaks exciting new legal ground but because it is a common complaint in vertical living: other people make noise. Aside from preposterously obvious nuisances – no, you cannot practice your tap routine at 1A.M. – most courts will tell litigants that if you’re going to live in an apartment building, you have to expect noise from other people living there. Carpets and padding should be required, but will not ensure the silence of living in a one-story house. There is another lesson for shareholders here, though: let he who is without sin cast the first lawsuit. Despite the fact that the initial complaint was filed by Leon, Harlan’s counterclaims took over the proceedings. Be wary – sometimes, if you sue a neighbor, she may turn around and sue you right back.

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First published: Feb 2013
Reinhard v. Connaught Tower Corporation

This is one in a series of cases – most at the lower court level – where the courts are grappling with secondhand smoke. Breach of warranty of habitability and constructive eviction are issues that have an impact on leased properties, including co-ops. The court here determined that there were issues of fact as to whether there was a breach of the warranty, and it will presumably determine at trial whether the infiltration of secondhand smoke was so pervasive as to breach the warranty. Similarly with respect to the breach of contract (lease) cause of action, the court must determine at trial whether the board maintained the building in “good repair,” as it is required to do under the lease. Breach of warranty of habitability and constructive eviction are claims that are not available to condominium owners, and we have seen courts consider claims of nuisance where condo owners complain of secondhand smoke. While in certain respects secondhand smoke cases can be analogized to cooking odor cases, as we understand the latest studies, secondhand smoke is a health hazard so that the level of responsibility to abate the smoke infiltration may be greater. This is an evolving area and we await direction from appellate level cases. As to individual director liability, we note that this decision is dated before the decision in Fletcher v. Dakota, Inc. (previously reported) and cannot comment as to whether the decision would have been different had Fletcher already been decided. It appears from the decision, however, that the board member sued did nothing more than sit on the co-op’s legal committee and sign a letter addressed to plaintiff.

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First published: Oct 2011
61 West 62 Owners Corp. v. CGM LLC, CGM EMP RTP LLC, West 63 Empire Associates, LLC and The Chetrit Group, LLC.

This is an important case because it addresses what happens when there is a claim that a party is in violation of a city noise ordinance, yet the agency charged with enforcing the ordinance does not issue a violation. The state’s highest court made very clear in its decision that an injunction may be issued to stop the noise, even if a violation was not issued. While the lower court appreciated the situation of the residents, the judge did not believe that the co-op demonstrated that it was likely to succeed on the merits, i.e., that it would be able to show that Empire’s actions constituted a private nuisance. The appeals court disagreed, in part because of its finding that it was immaterial that a violation of city law had not been issued – even though representatives of the police and fire departments had visited the bar. Finally, this case confirms the long-standing principle that a co-op corporation can pursue an action on behalf of its shareholders.

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First published: Oct 2011
61 West 62 Owners Corp. v. CGM LLC, CGM EMP RTP LLC, West 63 Empire Associates, LLC and The Chetrit Group, LLC.

This is an important case because it addresses what happens when there is a claim that a party is in violation of a city noise ordinance, yet the agency charged with enforcing the ordinance does not issue a violation. The state’s highest court made very clear in its decision that an injunction may be issued to stop the noise, even if a violation was not issued. While the lower court appreciated the situation of the residents, the judge did not believe that the co-op demonstrated that it was likely to succeed on the merits, i.e., that it would be able to show that Empire’s actions constituted a private nuisance. The appeals court disagreed, in part because of its finding that it was immaterial that a violation of city law had not been issued – even though representatives of the police and fire departments had visited the bar. Finally, this case confirms the long-standing principle that a co-op corporation can pursue an action on behalf of its shareholders.

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First published: Mar 2011
Oxman v. 1100 Park Avenue Cooperative Corp.

In this case, the court reviewed the causes of action claimed by Oxman and determined that they could not be sustained against her fellow shareholder, who complained about excessive noise coming from Oxman’s apartment. The court did not discuss whether the claims made by Ogden were true or whether the co-op board determined that Oxman was in fact making excessive noise. We suspect the court did not have to consider these issues in order to decide this motion. This case demonstrates that a shareholder will be protected if they complain about the actions of another shareholder, absent specific allegations of outrageous or extreme conduct. We found interesting, however, that Oxman apparently did not sue Ogden for defamation, i.e. for knowingly making an untrue statement which caused injury to Ogden. We do not know if such a claim would have been sustained, at least at the very early stages of the litigation. In addition, because the co-op and the managing agent did not move to dismiss, the case will continue to be prosecuted against them, although we cannot determine from this decision what “damages” Oxman claims she suffered as a result of their actions.

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First published: Jan 2010
First Avenue Owners Inc. v. Valentina Enterprises, LLC and J.A.V. Food Corp.

Typically, there is no protected right to light, view, or air. An exception exists if there is a recorded easement, such as the one in this case. It is for this reason that we recommend that those who are purchasing apartments that overlook the roof of an adjacent building perform due diligence to determine whether there is a recorded easement for light and air. Without such an easement, the owner of the adjacent building may be able to install mechanical equipment, a roof deck, or even additional stories (in which case “lot line” windows may have to be closed), provided that all laws are obeyed. When there is a recorded easement for light and air, however, its terms must be strictly followed. Courts may allow a minimal variance (such as if the volume were 253 cubic feet rather than the permitted 250), but in this case, the defendants’ failures to comply with the easement were substantial. In addition, even though the last sound measurements were taken in 2005 and 2006, the court determined that the cooling tower violated the noise control code. We believe that this ruling was made in part because the defendants’ failed to demonstrate – through expert testing and affidavit – that decibel levels 20 points above those permitted had been reduced at any time since 2006. The court also concluded that there was a private nuisance because there was a substantial, intentional, and unreasonable interference with the co-op residents’ right to use and enjoy their apartments. In opposition to the co-op’s motion, the defendants attempted to exert “form over substance” by arguing that certain “key” words were not contained in the co-op’s complaint. However, the court relied upon what the co-op actually demonstrated in its motion papers.

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First published: Dec 2007
Breezy Point Cooperative Inc. vs. Young

The Pullman progeny keep coming, about one every year since the landmark decision in 2002. While the number is still small, almost all of the progeny have supported the action of the co-op in terminating proprietary leases for objectionable conduct. Does the limited number of cases suggest the difficulty in establishing objectionable conduct or restraint on the part of co-op boards in applying Pullman to only the most egregious instances of objectionable conduct? Stay tuned!

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First published: Sep 2007
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.

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