This was originally posted on the SGR Blog.
Residential cooperative living presents foreseeable “nuisance” challenges from contiguous neighbors, in general, and from people living directly above, in particular. But, as a recent case illustrates, not every annoyance—no matter how hard the facts—leads to injunctive or other relief.
Steven Dubin sought a Court order directing his upstairs neighbor, Brian Glasses, to cease his nuisance activities, to comply with their coops house rules, and to refrain from activities that deprived Dubin of the quiet enjoyment of his home. Glasser moved to dismiss the complaint on the grounds that there was a pending proceeding in Housing Court, and the complaint failed to state a cause of action.
Dubin suffered from late-stage cancer. He purchased his apartment (without stating when) because the building was quiet. But in March 2020, when the pandemic shutdown New York City began, he became aware of his upstairs neighbor. Dubin alleged that Glasser caused loud noises at all hours of the day and night because apparently there was no carpeting on the hardwood floors. The worst time, according to Dubin, was from 11:00 p.m. to 8:00 a.m. Dubin speculated that the noise came from a chair rolling back and forth and some type of machine, possibly a shredder. And complained that there was nowhere in his apartment he could go to escape the noise and that the amount of noise increased after he complained to the doormen in the building. Dubin acknowledged calling the police to complain about the noise coming from Glasser’s apartment.
Glasser did not dispute that he had hardwood floors and stated that– in response to the proceeding and at the Court’s suggestion– he purchased a high-quality floor protector to place under his desk chair. Further, Glasser stated he was usually in bed by around 11 p.m. and was not making noise at all hours of the night. Finally, Glasser admitted that he used a small paper shredder at most twice a day for less than a minute each time but never at night.
Dubin’s complaint included causes of action for a declaratory judgment directing Glasser to comply with the building’s house rules, including installing carpeting; an injunction directing Glasser to abate the nuisance condition he had created; intentional infliction of emotional distress/harm; and attorneys’ fees.
A preliminary injunction is an extraordinary provisional remedy that will only issue where the proponent demonstrates a likelihood of success on the merits; irreparable injury absents a preliminary injunction, and a balance of equities tipping in the movant’s favor.
Dubin arguably demonstrated irreparable injury and balancing of the equities in his favor in light of his grave medical condition. But did not demonstrate a likelihood of success on the merits. The conflicting affidavits (of Dubin and Glasser) raised sharp issues of fact that warranted denial of preliminary injunctive relief. Accordingly, Dubin’s motion for a preliminary injunction was denied.
Glasser argued that the case should be dismissed because there was a pending proceeding in Housing Court brought by Glasser’s landlord primarily over the issue of whether Glasser was required to have floor coverings. Glasser opined that Dubin could protect his interest by participating in that proceeding by either intervening or testifying. However, dismissal based on another pending action was permitted only when the action (or proceeding) was between the same parties. Here, as Glasser acknowledged, Dubin was not a party to the Housing Court proceeding. Accordingly, the complaint was not dismissed based on the pending proceeding.
As to that branch of Glasser’s motion seeking dismissal for failure to state a cause of action, Dubin’s complaint was to be afforded a liberal construction; the allegations in it were taken as true and given the benefit of every possible favorable inference.
Glasser argued he was not bound by the building’s house rules requiring 80% of his floors be covered because he was a rent-stabilized tenant. And Dubin was not a party to Glasser’s lease. So, even if the lease required Glasser to abide by the house rules requiring 80% of a tenant’s floor to be covered, Dubin lacked standing to enforce that rule. Dubin responded that Glasser’s lease required him to abide by the rules and regulations promulgated by his landlord, including the 80% rule.
Dubin sufficiently alleged facts asserting rights as a third-party beneficiary to Glasser’s lease in that there was a binding lease between other parties and at least part of the lease, and the concomitant house rules were for Dubin’s benefit. And that benefit was sufficiently immediate to Dubin to indicate the assumption by Glasser and the landlord of duty to Dubin. Accordingly, Dubin’s first cause of action for a declaratory judgment was not dismissed.
Without citation to any authority, Glasser argued the complaint failed to state a cause of action because it sought a declaratory judgment and that was duplicative of the cause of action for equitable relief– and regardless, declaratory relief should not be awarded where other actions could provide adequate relief.
However, the declaratory judgment cause of action was based on the house rules, while the injunctive relief claim was based on a nuisance theory. Therefore, the two causes of action were not duplicative.
Glasser suggested Dubin could obtain the relief he sought in Housing Court. But Dubin was not a party to that proceeding. In fact, Dubin lacked standing to bring a proceeding against Glasser in Housing Court because he was not Glasser’s landlord. Moreover, Housing Court did not have jurisdiction to grant the equitable, declaratory, and injunctive relief sought by Dubin.
Glasser next argued that the complaint failed to state a cause of action for intentional infliction of emotional distress since there were no allegations suggesting willfulness. The elements that must be alleged to state a cause of action for the intentional infliction of emotional distress were extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress.
The complaint alleged that Glasser had “intentionally interfered with Dubin’s quiet enjoyment of his home”. That allegation was insufficient to allege that Glasser intended to cause severe emotional distress or disregarded a substantial probability of causing such distress. Moreover, the allegations concerning Glasser’s conduct (rolling a chair around on a hardwood floor and using a shredder), notwithstanding the complaint’s conclusory statement that Glasser’s conduct was so egregious so as to shock the conscience, did not rise to the level of extreme and outrageous conduct. Dubin’s action for intentional infliction of emotional distress was dismissed.
Finally, Glasser argued that Dubin’s cause of action for legal fees must be dismissed because there was no basis for awarding Dubin attorneys’ fees. Dubin did not allege in the complaint an exception to the “American rule” governing attorneys’ fees — the prevailing litigant ordinarily cannot collect his reasonable attorneys’ fees from his unsuccessful opponent, to which New York adheres. Dubin’s cause of action for legal fees was dismissed.