Case Notes in
Nuisance
Category
- Access
- Alterations
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
- Bylaws/House Rules
- Certificate of Occupancy
- Charges/Fees
- Commercial Unit
- Common Element
- Common Elements
- Companion Animal
- Constitutionality
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- Conversion
- Defamation
- Discovery
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- Due Diligence
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Gym
- House Rules
- Indemnification
- Indemnification/Subrogation
- Injunction
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Misrepresentations
- Motion Practice
- Motion Practive
- Notice of Pendency
- Nuisance
- Occupancy Agreement
- Ownership
- Parking
- Partnership
- Personal Injury
- Pets
- Property Damage
- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
- Representations
- Sales
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Succession Rights
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Sep 2023
Neighbor Against NeighborTAKEAWAY Noise disputes are such a common occurrence, but in this case the cooperative should consider itself lucky that it was not named in the suit. It issued a notice of termination against a shareholder who was subject to abuse, while apparently taking no action against the neighbor who the court found was engaging in uncivilized behavior and who might have held sway because of a personal relationship with an officer of the cooperative. Laying that aside, shareholders should be aware that they could be subject to nuisance and emotional distress claims when they engage in uncivil and inappropriate conduct against a neighbor. A month doesn’t go by in our practice without hearing a complaint that shareholders are being abusive to each other; the court may well have laid a pathway for an affected shareholder to properly deal with it.
Read full articleFirst published: Aug 2023
Dope, Dogs, and NoiseTAKEAWAY We strongly recommend that when seeking injunctive relief (or contempt) against an owner, you must be prepared to present live witnesses at any court hearing, especially if you expect opposition. Written affidavits cannot be cross-examined by a defendant. The court is unlikely to grant relief based solely on affidavit evidence unless the defendant fails to appear at all.
Read full articleFirst published: May 2023
Four-legged Identity CrisisIt is important that boards respond promptly to complaints from unit owners to prevent nuisance situations from spiraling out of control and to avoid being sued by unit owners for failure to enforce the rules. In this case, the board quickly mustered a barrage of complaints from unit owners and neighbors from the adjacent building, including photos and videos documenting the offending conduct. But without seeking a temporary restraining order at the outset, the offending conduct was allowed to carry on from June 2022 until the issuance of the preliminary injunction in March 2023. Moreover, the court did not order that Ms. Lambert remove any dogs from her unit. Because the parties will now proceed to litigate the validity of Ms. Lambert’s discrimination claims, the dogs may remain in place for a long time before their final status is resolved. But if the board ultimately prevails on its claims that Ms. Lambert has violated the by-laws and house rules, it may be entitled to recover its reasonable attorneys’ fees from Ms. Lambert. Unit owners who own noisy or vicious pets often argue that they are service animals or emotional support animals, and boards will typically need to consult with counsel to ascertain whether the applicable requirements have been met to avoid running afoul of anti-discrimination law.
Read full articleFirst published: Apr 2023
Turn Down That Noise!Noise complaints in New York City are common, yet not easy to win. Often the line is subjective, and courts are sensitive to the notion that Big City life is not country life. But here, the plaintiff backed up her claim with objective proof that the noise at issue was particularly bad, and exceeded the Noise Code. Armed with evidence that this was not the usual noise generated in a large, complicated, and heavily populated metropolis, she prevailed and got an injunction. No small feat, and the case is worth examining to see what distinguishes a winning hand from a losing hand.
Read full articleFirst published: Feb 2023
The Unbearable Sound of NoiseThere are at least two important points to make about this unusual decision. First, the courts recognize the inherent noisiness of living in New York City and are not inclined to find a public nuisance just because the children in the apartment upstairs run around a lot. Second, condominium boards have broad powers and discretion when it comes to enforcing its own rules, but a board that effectively abdicates its enforcement responsibilities may not be protected from legal consequences. Taking the two lessons together, while it is reasonable for condominium boards to treat noise complaints skeptically as a general rule, they still need to take them seriously enough to show that the complaints were investigated.
Read full articleFirst published: Mar 2022
Bad BehaviorSometimes the animosity that grows between neighbors takes on a life of its own, and if not nipped in the bud drives them to self-destructive behavior. Where the parties could not act rationally to realize their interests, the judge had to step in and be the grownup, if for no other reason, to prevent abuse of the court’s resources.
Read full articleFirst published: Jun 2021
Dubin v. GlasserThe 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.
Read full articleFirst published: Jun 2021
Dubin v. GlasserThe 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.
Read full articleFirst published: Sep 2019
Leon v HarlanThe 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.
Read full articleFirst published: Feb 2013
Reinhard v. Connaught Tower CorporationThis 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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