This was originally posted on the SGR Blog.
Charges and countercharges by apartment neighbors are commonplace in residential buildings. Occasionally, disputes involve facts, circumstances, personalities and conduct that, as a recent case shows, defy the ordinary.
25 CPW City Views, LLC and Hedy Sloan Stempler sought a preliminary enjoining Linda Cohen from:
(1) contacting Stempler or any occupant of apartment 18H at 25 Central Park West;
(2) appearing at the front door of 18H;
(3) ringing the doorbell of 18H;
(4) placing any material under the door of 18H;(5) shouting, screaming, yelling, or engaging in physical or verbal threats directed at Stempler or any occupant of 18H;
(6) engaging in any assault, abuse, harassment, or intimidation of Stempler or any occupant of 18H;
(7) going onto the 18th floor of the apartment building;
(8) interfering with comforts or conveniences of 25 CPW or Stempler; and
(9) creating or permitting any disturbing noises or activities, including the creation of noxious odors, that interfere with 25 CPW or Stempler’s use and enjoyment of 18H.
Cohen, in turn, sought an order enjoining 25 CPW and Stempler from harassing, menacing, threatening, or stalking her.
25 CPW owns apartment 18H and leased the premises to Stempler since December 28, 2016. Cohen owns and is the sole occupant of apartment 17H, which is located directly below 18H in the same building. Prior to leasing 18H to Stempler, 25 CPW leased 18H to Matthew Slosar and Byron Kantrow Slosar.
25 CPW and Stempler asserted that Cohen had been engaged in escalating harassment of Stempler, and that Cohen previously tormented the Slosars who ended up not renewing their lease because of Cohen’s harassment. The harassment of the Slosars included Cohen making frequent false complaints of noise emanating from 18H, even when they were away on vacation, and making disparaging remarks to them. Cohen would use her broom to bang on her ceiling to complain of noise, during times when tenants were not expected to be quiet, i.e. between 8 a.m. and 11 p.m. She would make noise complaints, including about the Slosars dog, to the building management, Julie Friedman Realty, which investigated and found the complaints baseless. Cohen herself would make noise, beating drums and chanting, and burning odors would waft from her apartment up to 18H to the Slosars’ annoyance.
Matthew Slosar and Byron Kantrow Slosar both submitted affidavits detailing Cohen’s harassment against them, including her actions in banging with her broom or other objects on her ceiling complaining of their noises, even complaining that their morning showers were too noisy. She complained that their dog’s toenails were too noisy on the carpeted floors, and complained of their “personal habits,” confronting them and making disparaging remarks about their sexual orientation. Cohen also harassed their housekeeper not to use the vacuum or any bleach when cleaning. They were forced to lodge numerous complaints against her, and, at the end of their lease, decided not to renew because they could no longer suffer her conduct.
After the Slosars moved out, 25 CPW renovated 18H, installing additional soundproofing to address Cohen’s complaints, at a cost of over $4,000. Cohen complained of the noise during renovations, and delayed the performance of the work, which in turn delayed 25 CPW in its attempts to re-lease the unit..
25 CPW submitted the affidavit of one of its principals, Svetlana Wasserman, who attested that Cohen had been an incessant nuisance and had harassed her neighbors to the point of attaining their departure from their units by making frivolous and unfounded noise complaints. She details Cohen’s harassment of the workers performing the renovations, and that Cohen wrote an email which she slipped under Wasserman’s own apartment door, accusing and threatening Wasserman and her family. Wasserman submitted various letters, notes, and emails from Cohen demonstrating Cohen’s harassing behavior.
25 CPW asserted that, to accommodate Cohen, it chose Stempler as a new tenant as she was a “quiet, single, elderly lady who lived [in the building] since 1997”. On December 28, 2016, Stempler took occupancy of 18H.
Stempler suffered from multiple sclerosis and asserted that the stress from Cohen’s relentless harassment had exacerbated her symptoms and had been detrimental to her health. She asserted that Cohen’s harassing behavior had escalated since December 2017.
On February 1, 2018, Cohen put a note on Stempler’s door stating:
Later, during that same week in February, Cohen slipped various notes under Stempler’s door saying things such as “Sweet Dreams fat Piggy” with angry face emoji stickers, and a dead face emoji, and the note allegedly was covered with garlic powder.
Stempler asserted that, on February 22, 2018, there was some strange white powder on her door knob, and her doorbell had been defaced with a black substance, which she reported to the “front desk.” The front desk then sent up the service elevator employee to clean. Sometime thereafter, a second note was left for Stempler stating “I am taking you to court you nasty destructive intrusive creep”. And a third note was left for her which said “Sleep tight Pig Face Someone is watching u” with a drawing of two eyes and signed “sshhh”, Stempler stated that, during that time period, Cohen incessantly rang her doorbell, and one night screamed loudly “I know you’re in there, open up, open up or else”. Stempler contacted both a member of the board of the condominium association, and Lewis Friedman of Realty, the manager of the property, with her concerns.
On February 23, 2018, Cohen took the service elevator up to Stempler’s floor, rang her doorbell, and banged repeatedly on her door. When Stempler finally opened the door, with her cell phone camera ready, Cohen allegedly threw garlic powder all over her and thrust an orange in her face. Stempler submitted copies of her cell phone pictures of Cohen with the garlic and orange.
One afternoon Stempler received a call at her door by EMTs who said that they had received a call that there was a “very unwell lady here”. She told them that she had just woken up, and then they left. She believed that Cohen was behind the call. Stempler contended that Cohen had complained to her, to the front desk, and to the police, that she disturbs Cohen by flushing her toilet and by dropping heavy objects, like a bowling ball, on the floor and moving furniture.
Cohen made complaints against Stempler in the middle of the night and succeeded in getting the front desk people to come up and awaken Stempler. Upon further inquiry, the property managers determined that the complaints by Cohen appeared to lack merit.
Stempler asserted that Cohen smoked marijuana or burned something she could not identify, and the noxious fumes invaded Stempler’s apartment, making her sick. She stated that she was afraid of Cohen, and feared leaving her apartment and running into Cohen in the building or on the street and was afraid that Cohen would throw something at her more dangerous than garlic powder and seriously injure her.
Stempler and 25 CPW asserted six causes of action against Cohen: (1) by 25 CPW for nuisance; (2) by Stempler for nuisance; (3) by Stempler for intentional infliction of emotional distress; (4) by 25 CPW for tortious interference with prospective business relations; (5) by 25 CPW for violation of condominium by-laws; and (6) by both for injunctive relief.
Cohen answered the complaint, denied the material allegations, and asserted 27 affirmative defenses, and six counterclaims. The counterclaims alleged that 25 CPW and Stempler were harassing her, being a nuisance, stalking, menacing, intentionally inflicting emotional distress, and sought a permanent injunction.
25 CPW and Stempler sought a preliminary injunction to stop Cohen’s allegedly long, vicious, and escalating harassment of Stempler and other occupants of 18H. They contended that they showed a likelihood of success on the merits of their claim for intentional infliction of emotional distress, contending that Cohen’s conduct could be characterized as atrocious and beyond the bounds tolerated by a civilized society, as it was a vicious campaign without justification to terrorize a defenseless multiple sclerosis (MS) victim. They asserted that Cohen’s relentless and increasingly vicious acts had caused extreme anxiety to Stempler and that Cohen should be held accountable. They further argued that they demonstrated a likelihood of success on their nuisance claim because Cohen’s unjustifiable actions interfered with 25 CPW’s enjoyment of 18H as the owner, and deprived Stempler of her enjoyment as the tenant in 18H. They asserted that Stempler’s MS condition would continue to be adversely affected by Cohen’s harassment, and that the physical harm was potentially irreparable. Finally, they urged that the equities balanced in their favor, as the harm to Stempler’s mental and physical well-being by Cohen’s continued and escalating harassment and assault outweighed any harm to Cohen in prohibiting her from continuing such harassment while the action was proceeding.
Cohen attested that Stempler’s affidavit was misleading and lacked context. She stated that Stempler had engaged in an extended harassment campaign against her which had exacerbated her health issues. She asserted that Stempler “regularly scrapes chairs or furniture on the floor and bangs repeatedly on her floor”. And that she sent numerous emails complaining to management about Stempler and called the police to complain and file a report. She admitted that she knocked on Stempler’s door many times on February 23, 2018, but stated that she was doing so because Stempler was banging on her floor with some object in order to disturb Cohen. She asserted that she did not throw any garlic powder at Stempler but admitted to placing the various notes on Stempler’s door name-calling and threats. Cohen claimed she did so because Stempler was “repeatedly pounding on her floor during all hours of the day and night solely out of her bizarre spite for me”. Cohen contended that leaving an angry note for Stempler was “entirely appropriate in that situation”.
In response to Stempler’s assertions that she was ringing the doorbell incessantly and yelling out, Cohen admitted that this behavior was “partially true”. She contended that she went upstairs to tell Stempler to stop banging on her floors and she raised her voice when Stempler refused to answer her door. Cohen stated that she did not know why the EMTs came to Stempler’s door, but stated that when she called the police, “the police must have determined that Mrs. Stempler was unwell and requested medical support”. She asserted that while 25 CPW and Stempler contended that 18H was soundproofed, no soundproofing would prevent noise from intentional and repeated banging on the floor. She stated that she was a petite and frail woman, and not a physical danger to anyone. Finally, she urged that, if the Court was inclined to enter an order preventing any behavior, it should bar both sides from engaging in abusive conduct.
Cohen argued that if the allegations against here were true, 25 CPW and Stempler should have filed a police report so that Cohen could be investigated criminally. And their failure to do so indicated that they did not believe in the veracity of their allegations. She also argued that a court of equity should not undertake to enforce the criminal law or enjoin the commission of a crime. Cohen further maintained that 25 CPW and Stempler failed to demonstrate a likelihood of success on the merits because the facts were sharply disputed as to who was the aggressor. She argued that the potential that Stempler’s health would deteriorate without an injunction failed to show irreparable harm, and, that her own health conditions were being exacerbated by Stempler’s conduct. As to the balance of equities, Cohen argued that to grant 25 CPW and Stempler’s application would be to assume Cohen committed gross criminal law violations when Stempler was the aggressor.
In opposition to Cohen’s cross motion, Stempler submitted another affidavit in which she “categorically den[ied] ever having banged or pounded on the floor of Apartment 18H, scraped furniture or any other heavy objects across such floor”. She stated that she would be very hard-pressed to lift much less move any heavy objects with her MS, but stated that she walks with a cane. She pointed out that there were no other noise complaints about her from anyone other than Cohen, but that there had been numerous complaints against Cohen. Stempler also pointed out that Cohen admitted the February 23, 2018 confrontation and did not deny that Stempler took the photos of her. She also admitted to having placed the various notes under Stempler’s door which contained disturbing threats, and called Stempler names, disparaging her appearance.
25 CPW and Stempler also submitted the affidavits of the Slosars who stated that Cohen continually and maliciously harassed them. They affirmed that she repeatedly banged on her ceiling during normal, non-quiet hours, complaining that their morning showers were too noisy, but banged drums and burned noxious substances in her own apartment.
Svetlana Wasserman, a principal of 25 CPW, attested to Cohen’s actions in harassing Stempler, the Slosars and other neighbors by making frivolous noise complaints And 25 CPW’s efforts to accommodate her, Cohen’s actions in harassing the workmen soundproofing 18H, other tenants in the building, and Wasserman’s own family with abusive letters and emails.
Peter Lowenkron, an owner who rented out apartment 17I in the building, submitted an affidavit attesting that Cohen had harassed tenants in his apartment with noise complaints when the tenants were simply using the apartment in a normal, everyday manner, such as taking a morning shower.
Eric Lyons, the resident manager of the building, attested to Cohen’s constant noise complaints against at least four tenants in the building, including Stempler, the Slosars and tenants in apartments 17I and 17G, and unequivocally affirmed that “in no instance were any of Cohen’s noise complaints found to have any merit whatsoever.” And no other tenant corroborated Cohen’s complaints. Lyons also stated that other tenants had corroborated that Cohen had made loud noises and banged on her ceiling, beat drums, and burned noxious substances in her apartment.
Jessica Quinn, an employee of Douglas Elliman Property Management, attested that, on at least one occasion, Cohen made a very late night noise complaint against Stempler, which resulted in Stempler being awoken in the middle of the night by the front desk. Quinn affirmed that, upon further inquiry, the complaints appeared to lack merit, and that the same thing reportedly occurred with the Slosars. Finally, 25 CPW and Stempler submitted the affidavit of John Timlin, a principal of Westpoint Construction Inc., the soundproofing contractor for 18H, who attested to the work done on 18H in August 2016.
25 CPW and Stempler argued that Cohen failed to show a probability of success on her claims, submitting only her own affidavit, in contrast to the numerous affidavits submitted by them from other tenants and people employed by the building showing Cohen’s harassment of Stempler as well as other tenants. In addition, they pointed out that Cohen admitted that she did the things Stempler accused her of doing. They contended that half of Cohen’s counterclaims were for causes of action that do not exist, like harassment, stalking and menacing. They urged that Cohen failed to demonstrate irreparable injury, as her allegations of health issues were purely conclusory. They contended that the equities did not balance in Cohen’s favor as she appeared to be hypersensitive to sounds, like toilet flushing, coming from Stempler’s apartment even after extensive soundproofing, and complained of noises regardless of the time of day (i.e., even during non-quiet hours) or when the occupants were away on vacation. If relief were granted to Cohen, 25 CPW and Stempler argued that Stempler would not be able to flush her toilet or walk around her apartment.
In reply, Cohen submitted a video of an incident on June 9, 2018 which she claimed showed Stempler aggressively taking phone pictures of Cohen in the building lobby. The purported video was provided through an internet link to what appeared to be from a Dropbox account, a cloud storage service. The only other proof she submitted was an audio recording she made on June 28, 2018 which she claimed showed Stempler dropping a heavy object on the floor at 11:30 p.m. As with the video, the recording was linked to a Dropbox account.
A temporary restraining order was entered in favor of 25 CPW and Stempler. Cohen’s request for a temporary restraining order was denied.
On a preliminary injunction motion, the movant must show a probability of success on the merits, irreparable injury absent the grant of the relief, and a balance of equities in the movant’s favor. Proof establishing these elements must be by affidavit and other competent proof, with evidentiary detail. And the determination of such a motion lies within the sound discretion of the trial court.
An injunction may be granted even where there are factual questions for trial, so long as the movant can demonstrate a probability of success on the merits. The Court found that while the parties had submitted conflicting affidavits, injunctive relief should be granted in favor of 25CPW and Stempler.
To assert a claim for private nuisance, the plaintiff must establish the following elements: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failing to act. Conduct is intentional when a person acts with the purpose of causing the invasion, knows that it will result, or is substantially certain it will result, from his or her conduct. However, not every intrusion will constitute a nuisance: the issue is whether a person’s use of his or her property constituted an unreasonable and continuous invasion of the property rights of another.
Here, through the affidavits of Stempler, the Slosars, Lowenkron, as well as the affidavits of the resident property managers, Lyons and Quinn, and of Friedman, the 25 CPW property manager, 25 CPW and Stempler demonstrated a pattern of recurring objectionable conduct and that Cohen’s interference was substantial. Those affidavits showed that Cohen was repeatedly and significantly disturbing Stempler’s right to use and enjoy 18H by not only banging on Stempler’s floors at all hours of the day and night, but by confronting Stempler at her apartment door; throwing garlic powder at her; banging on her door; yelling and shouting at her not only during the day, but late at night; insisting that the front desk knock on Stempler’s door, waking her up in the middle of the night; calling the police; and repeatedly attaching on or slipping under her door threatening, insulting, and degrading notes. Cohen’s behavior began when Stempler moved in and apparently had escalated to physical confrontations.
25 CPW and Stempler submitted the Slosars affidavits as proof that Cohen made similar unfounded noise complaints against them and that they refused to renew their lease because of the noise and complaints. Similarly, Lowenkron, the owner of apartment 17I, adjacent to Cohen’s apartment, attested that Cohen made the identical claims against tenants in 17I for noises they were making in simply using the apartment in a normal manner, such as taking a morning shower, flushing the toilet, or using the kitchen in the evening. And Cohen sent emails and left notes for those tenants. 25 CPW submitted proof that it expended over $4,000.00 in soundproofing 18H in August and September 2016, and that the installations met or exceeded New York City Code requirements, falling within the “Superior Soundproofing Category” for the flooring in 18H.
25 CPW and Stempler also demonstrated that Cohen’s disturbances were intentional. Cohen admitted that she purposely engaged in that behavior. The repeated nature of Cohen’s acts and the fact that they occurred at all hours of the day and night, often deliberately waking Stempler, established the third and fourth elements of the nuisance claim, that the interference was unreasonable and affected Stempler’s and 25 CPW’s rights to use and enjoy the apartment.
In opposition, Cohen offered nothing but her own affidavit, claiming that her admitted intrusions were warranted in response to noise Stempler was making in moving around in 18H. Her complaints about Stempler’s noises were not corroborated by other evidence, or even any factual detail. And her assertions that Stempler was dropping bowling balls or other heavy objects were somewhat incredible given that Stempler is elderly, has MS, and walks with a cane. The only other proof she submitted, a purported audio recording of noises coming from Stempler’s apartment on June 28, 2018, as well as a video of Stempler taking cell phone photos of Cohen in the building lobby on June 9, 2018, were inadmissible because they were unauthenticated, lack any foundation and were provided only with an apparent link to a Dropbox account. In addition, it was unclear how Stempler’s actions in taking a photo of Cohen was causing her various complaints against Stempler.
Lyons and Quinn, the resident property managers for the building, attested that Cohen’s complaints about Stempler lacked merit, and that she made the same unsubstantiated noise complaints about the Slosars and the neighboring tenants in both 17I and 17G, even when the apartments were vacant. Lyons unequivocally stated that Cohen made numerous noise complaints; “in no instance were any of Cohen’s noise complaints found to have any merit whatsoever,” and no other tenant or occupant complained of the noise that Cohen alleged was occurring. Even if Cohen’s affidavit raised a factual issue as to whether Stempler had been making noises at were disturbing Cohen, that factual issue did not subvert the establishment of a clear right to relief by 25CPW and Stempler.
25 CPW and Stempler also demonstrated irreparable injury. An injury is irreparable when it cannot be adequately compensated by money damages or when there is no pecuniary standard to measure damages. That the injury was threatened and imminent must be shown and what constituted such injury depended not only on the facts but upon the discretion of the court.
Stempler was elderly and had MS, and attested that she was afraid of Cohen, afraid to leave her apartment, and feared that, with the clear escalation of the conduct, Cohen might throw something more dangerous than garlic powder on her. She detailed the nightly assault on her quiet enjoyment of her apartment. She asserted that the constant stress Cohen had inflicted upon her had exacerbated her many serious MS symptoms. That was sufficient to demonstrate irreparable injury under the circumstances of Cohen’s escalating harassment to warrant injunctive relief.
And the balance of the equities clearly tipped in favor of granting relief to 25 CPW and Stempler. The potential harm to Stempler’s health and well-being if an injunction was not issued had been demonstrated. Cohen’s harassment was persistent, disruptive, escalating and frightening Stempler in her own home. There was no apparent harm to Cohen by prohibiting her from contacting, appearing at Stempler’s door or on the 18th floor of the building, or from shouting or screaming at her, or engaging in verbal or written threats or intimidating her.
25 CPW and Stempler sought to enjoin a private nuisance that was interfering with their property rights, and not to punish Cohen for her past acts, whether criminal or not. Thar clearly fell within the equity jurisdiction of the Court. Thus, 25CPW and Stempler satisfied the requirements for a preliminary injunction, and their motion was granted.
Cohen’s motion for preliminary injunctive relief failed to meet the legal requirements. Cohen failed to demonstrate a likelihood of success on the merits of her claims. In her answer, she purported to assert counterclaims for nuisance, harassment, stalking, menacing, and intentional infliction of emotional distress. But Cohen failed to make any showing that she would succeed on the merits of any of those counterclaims. She asserted only that Stempler was the aggressor, and had banged on the floor of her apartment, and scraped chairs and furniture, solely to harass Cohen. At the same time, Cohen admitted to her confrontations with Stempler, and that she authored and delivered the various notes to Stempler. That proof fell short of her burden in seeking injunctive relief. Conclusory statements lacking factual evidentiary detail warranted denial of Cohen’s motion seeking a preliminary injunction.
25 CPW and Stempler submitted proof that sound monitoring equipment was installed in Cohen’s apartment from June 4, 2019 through September 23, 2019. They submitted a noise monitoring report for the period of June 4, 2019 to July 8, 2019, and an affidavit from an engineer, James W. Pugh, PhD, P.E. Pugh stated that he had expertise in evaluating the measurement of levels of sound intensity through decibel readings as indicated in the noise monitoring report. Pugh stated that, in his opinion to a reasonable degree of scientific certainty, there was no correlation between the sound complaints from Cohen’s apartment (17H) and an increased sound decibel level in the apartment except for one instance, and, in that one instance, the elevated decibel level was minimal. He concluded that there was a lack of acceptable correlation between Cohen’s complaints and any increased decibel readings. Even without this additional proof, Cohen failed to demonstrate a likelihood of success on the merits of her counterclaims. Cohen’s application for injunctive relief was denied.
* Vice-President Spiro T. Agnew in a speech (written by William Safire) to the California State Republican Committee on September 11, 1970.