Residential Condo Unit Owner Claims Excessive Noise/Odors from Neighbor’s Tenant

This was originally published on the SGR Blog.

Were Allegations of Complaint Sufficient to State Claim for Nuisance?

In an action seeking permanent injunctive relief upon claims for breach of contract, nuisance, and trespass, Sabrina Santoro and Antonio Micalizzi, owners of a Manhattan condominium unit, alleged that the tenants of a neighboring unit owned by Luigi Rosabianca, had caused excessive noise and odors to emanate from his unit. The board of managers of Cipriani Club Residences at 55 Wall Condominium and First Service Realty, Inc., the building manager, had not sufficiently addressed their complaints.

The board and building manager answered the complaint. Santoro/Micalizzi moved for leave to enter a default judgment against Rosabianca and John Does 1-10, the fictitious name afforded his tenants.

On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complain proof of the facts constituting the claim, and proof of the defaulting party’s default in answering or appearing. The quantum of proof necessary to support an application for a default judgment is not exacting, but some firsthand confirmation of the facts forming the basis of the claim must be proffered. The proof submitted must establish a prima facie case. As such, where a valid cause of action is not stated, the party moving for a default judgment is not entitled to the requested relief, even on default. The CPLR does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action.

Initially, the court noted that the affidavits of service alleging that Rosabianca and the John Does were served with the summons and complaint at 55 Wall Street, by service upon a concierge even though Rosabianca did not reside do not identify any of the John Doe tenants. No judgment can be entered against an unidentified party. In any event, even if assuming service was effective, the motion was denied as Santoro/Micalizzi failed to submit proof of the facts constituting the claims.

In support of the motion, they relied on the unverified complaint, an affirmation of counsel, and the affidavit of Micalizzi. But the unverified complaint was utterly devoid of evidentiary value, and thus insufficient to support entry of a judgment. And, since counsel claimed no personal knowledge of the underlying facts, the affirmation of the counsel was without probative value or evidentiary significance on the motion. Nor was the affidavit of Micalizzi with exhibits sufficient to meet the burden on the motion since, even if accurate, his allegations fell short of establishing a claim of breach of contract, nuisance, or trespass.

Micalizzi alleged that on various dates between 2018 and 2019 he and Santoro, his wife, experienced noise disturbances and noxious odors emanating from Rosabianca’s unit. Micalizzi recounted that, on August 12, 2018, he was awoken in the middle of the night by loud music, screams and the sounds of video games, along with the smell of marijuana coming from Rosabianca’s unit. In April 2021, their tenant notified them that he also had been experiencing noise and odor emanating from Rosabianca’s unit, and that he purchased an air purifier and noise cancelling machine. Micalizzi further alleged that he contacted the board and a managing agent on many occasions starting in August 2018 but that, to his knowledge, they failed to take any definitive action, except that on one occasion when the board notified Rosabianca that the conduct of his tenants was in violation of the condominium’s by-laws. The affidavit submitted by Santoro stated only that she agrees with her husband’s allegations, offering no additional facts regarding the complained of conduct. Both affidavits are sworn and notarized in Italy and present an issue of compliance with CPLR 2309(c).

The breach of contract claim failed against Rosabianca because Santoro/Micaliz did not allege that any contractual relationship or privity of contract with him. Generally, only parties in privity may enforce the terms of the contract. Sanoro/Micalizzz did not allege any relationship with Rosabianca approaching privity. Nor did they provide any decisional authority to support a theory that owners of neighboring condominium units are in privity of contract with one another merely by virtue of proximity.

The elements of the common law cause of action for a private nuisance are: (1) an interference substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with the plaintiff’s property right to use and enjoy land; and (5) caused by another’s conduct in acting or failure to act. Nuisance imports a continuous invasion of rights. That is, nuisance is characterized by a pattern of continuity or recurrence of objectionable conduct.

“Great noise” or “noxious vapors” may constitute an interference with a right to use and enjoy land, i.e. a nuisance. However, not every intrusion will constitute a nuisance. Persons living in organized communities must suffer some damage, annoyance, and inconvenience from each other. A person living in a city must expect to suffer the dirt, smoke, noisome odors, and confusion incident to city life. The noise complained of must be substantial and unreasonable, something more than noises that are incidental to normal occupancy.

In his affidavit, Micalizzi described the nuisances as having occurred between August and November of 2018 and again from June to August of 2019, apparently abating between December 2018 and May 2019. Sometime thereafter, he and Santoro rented their apartment to a tenant who also complained to them on several occasions about the noise and odors emanating from Rosabianca’s unit between April and August of 2021. No allegations were made concerning the period September 2019 to the date of Micalizzi’s affidavit, May 4, 2022. There was no affidavit from that or any other tenant. While the noise and odor incidents may have occurred on various occasions during 2018, 2019 and 2021, and have constituted objectionable conduct, as alleged the conduct did not constitute a continuous invasion of rights or a pattern of continuity or recurrence.

Santor/Micalizzi also failed to establish, prima facie, a claim for trespass, or an injury to the right of possession and requires a showing of an intentional entry onto the land of another without permission. No property was taken, and intangible intrusions such as noise and odor are treated as nuisances, not trespass, because they interfere with nearby property owners’ use and enjoyment of their land, not with their exclusive possession. At most, if the noise and odor intrusions alleged rose to the level required for a finding of nuisance, that would not be a trespass but, at most, simply a misuse by Rosabianca of his own property to the injury of his neighbors. Neither was established here.

Since the submissions fall short of established a prima facie claim for breach of contract, nuisance or trespass, Santoro/Micalizzi were not entitled to any relief, including the injunctive relief requested as against Rosabianca or his unidentified tenants — a mandatory and permanent injunction. That relief would also require them to show that Rosabianca and his tenants were presently causing or threatening to cause harm to the themselves. But the conduct complained of occurred only sporadically and prior to September 2019. No application for a preliminary injunction was made seeking immediate relief earlier in the litigation.

Santoro/Micalizzi’s motion for leave to enter a default judgment against Rosabianca and “John Does 1-10” was denied.

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