Was Residential Holdover Proceeding “For the Birds?”: Pigeon-Feeding Tenant Faced Eviction for “Nuisance”

This was originally posted on the SGR Blog.

Pigeons are synonymous with New York City’s high-rise ecology. Pets to be fed by some. An annoyance to others. But, as a recent case illustrates, a pigeon-feeding tenant may face eviction if her conduct rises to the level of “nuisance.”

GSKP LLC filed a nuisance holdover proceeding seeking possession of unit no. 3 at 28 Bond Street from Margaret Lee. The premises were not subject to the Rent Stabilization Law or the Rent Control Law. The premises were rent-regulated pursuant to Article 7-C of the Multiple Dwelling Law. The Notice of Petition and Petition alleged that the term for which the premises were rented expired on November 30, 2018.

According to the Thirty Day Notice of Termination, Lee committed or permitted a nuisance at the premises or maliciously or by reason of gross negligence substantially damaged the building. The Notice alleged that Lee’s conduct substantially interfered with the comfort and safety of GSKP or other occupants of the building and/or adjacent structures due to her feeding pigeons from her fire escape in front of the building and/or windowsill, which caused bird feed and fecal matter to fall from the fire escape onto the street in front of the building and onto the customers of OAK, a retail clothing store occupying the first floor of the building. GSKP observed potted plants, a bird feeder, and feeding pigeons on the windowsill. The Notice further alleged that other residents had complained of the presence of bird feed and fecal matter, which presented a health hazard, and, as a result of Lee’s feeding the birds, the mortar at the building had been damaged.

GSKP had previously commenced a suit in the New York State Supreme Court, which asserted various causes of action, including a cause of action for nuisance. GSKP subsequently moved for a preliminary injunction together with a temporary restraining order to enjoin Lee from feeding the birds from her fire escape, windowsill, and in front and back of the building. The TRO was granted and restrained Lee from feeding birds from the fire escape, the windowsill, in front of or in back of the building, and/or in front of Oak’s store. Lee was also required to remove all items, except for planters, from her window ledge and all items from her fire escape. 

According to the Notice, Lee violated the terms of the TRO and began feeding birds again. As a result of Lee’s actions, the Notice alleged that the setback roof in the back was covered in feces and bird feed which blocked the drain of the roof and damaged the building. GSKP thereafter filed an Order to Show Cause in Supreme Court, which sought to punish Lee for contempt for violating the TRO. At that time, the parties entered into a Stipulation of Settlement, in which Lee agreed not the violate the TRO for six months. In the event Lee complied with the TRO, the action would be dismissed with prejudice.

Although the Notice alleged that during the six-month period, Lee continued to feed the birds, GSKP did not bring the action back to court. At the conclusion of the six-month period, GSKP obtained a video that demonstrated Lee fed the birds, and the roof in the back was again covered in feces, feathers, and birdseed which blocked the drain and caused flooding and damage to the building. The Notice also alleged that other tenants at the building complained, and the birdseed, the dead bird, and fecal matter all presented a health hazard to the other tenants in the building and passersby. It was alleged that Lee continued her behavior despite requests by GSKP to stop.

Lee appeared by counsel in the holdover proceeding. And in her answer alleged, inter alia: that the allegations in the Notice were insufficient to constitute a nuisance; GSKP failed to state a cause of action; the allegations in the Notice were vague and conclusory; Lee had not engaged in behavior sufficient to constitute a nuisance; nor had she maliciously, or by reason of gross negligence, substantially damaged the building; she was entitled to a post-trial opportunity to cure any conditions which constituted a nuisance; the multiple dwelling had not been legalized in compliance with the MDL in that there was no certificate of occupancy and GSKP could not recover use and occupancy; GSKP previously commenced a proceeding on the same allegations in New York County Supreme Court; GSKP did not prove Lee violated the probationary period, and GSKP was precluded from reusing the allegations presented in the Supreme Court action which was dismissed with prejudice. Lee also counterclaimed for attorneys’ fees.

The case proceeded to trial for five days over a 15 month period.

GSKP offered the following documents on its prima facie case: current deed; prior deed; Interim Multiple Dwelling registration from 2018; IMD registration from 2019; and NYC Loft Change of Ownership from Saada Roberts to GSKP LLC dated October 25, 2019. The Court also took judicial notice of the prior Supreme Court action between the parties.

GSKP’s first witness, Robert Powitz, was qualified as an expert. Dr. Powitz is a registered sanitarian who had a certificate in Wildlife Fisheries and Forest Conservation (1965), an A.A.S. in Agricultural Production (1962), a B.S.A. in Agriculture (1964), an M.P.H in Public Health (1974), and a PH.D. in Environmental Health and Epidemiology (1978). According to Powitz, he was an expert sanitarian as well as an expert in pigeons. Powitz testified that he visited the building once, long after Lee had stopped feeding the pigeons, and that he reviewed dozens of videos and photographs. Based upon his observations, Powitz concluded that the conditions seen in the videos and photographs were “typical of a feeding area typical of a flock.” Powitz testified that he saw roosting sites at the building, although there were no active nests when he visited the site. According to Powitz, pigeons are creatures of habit, and if there is no food, they usually stay around for a week or two and then leave. Powitz described pigeons as “opportunists” and stated that when one pigeon finds a food source, other pigeons will come. Furthermore, Powitz stated that when pigeons are present, there is a build-up of debris, which, when dry, can be airborne and carry fungal and/or bacterial disease. Powitz also stated that pigeon feathers are notorious for clogging drains. According to Powitz, Lee had put other occupants of the building at risk because when feces pile up next to an air intake, the disease can be introduced. And according to the New York City Department of Health website, pigeon droppings cause human diseases such as histoplasmosis, cryptococcosis, and psittacosis. Powitz, as a health expert, concluded that Lee’s conduct in feeding the birds was a direct nuisance and risk.

Powitz reviewed the video recording of the pigeons going to a sill on the third floor of the building on the following time and dates:

7/18/18 @ 6:17 pm 8/01/18@ 6:38 pm 8/02/18 @ 7:12 am 8/05/18 @ 3:39 pm 9/20/18 @ 7:46 am 9/28/18 @ 3:05 pm-48 seconds 9/28/18 @ 8:00 am-4 seconds 9/28/19 @ 2:00 pm-7 minutes and 50 seconds 9/28/18 @ 3:00 pm-3 minutes and 56 seconds 9/29/18 @ 7:00 am-37 minutes and 46 seconds 10/01/18 (a lot of pigeons) 10/02/18 (a lot of pigeons) 

During cross-examination, Powitz admitted that he was a paid expert; was not registered as a sanitarian in New York; and had no professional authority in the State. Powitz was not knowledgeable in the New York City Health Codes and did not know if feeding pigeons was a violation of any New York rule or regulation. Powitz admitted that he did not know how many pigeons were at the premises; was only hired two weeks prior to trial– and his one visit to the building was on the morning of his testimony when no pigeons were present, the area was clean, there were no roosting sites on the building or any neighboring building, and there was no infestation. Powitz also admitted no testing was done for the presence of fungus or bacteria.

It appeared to Powitz, that there were no pigeons until Lee put out food. According to Powitz, pigeons look for patterns and, as they were fed at regular intervals, they waited for food. Powitz also testified that, according to the photographs and video, the pigeons were roosting on the grey building to the left of the premises. The parties stipulated 31 photographs that depicted the ground area near the premises. Powtiz testified that the pictures were typical of a “feeding area” with feathers and defecation.

Lee, the next witness called by GSKP, testified that she lived alone on the fourth floor of the building as well as part of the third floor and that she never had a lease for the premises. Lee admitted she fed pigeons from the premises. GSKP, through Lee, petitioner offered the stipulation from the Supreme Court action in which she agreed to refrain from feeding pigeons for six months, from November 1, 2017, through May 1, 2017. The stipulation stated that if Lee violated the terms, GSKP was entitled to submit a letter to the Court to request a hearing and determine if Lee breached the stipulation. If GSKP did not establish Lee had violated the terms, the action would be dismissed with prejudice.

Lee believed there was no law against feeding pigeons. She had not fed the pigeons after April 30, 2018. And that, at the conclusion of the probationary period from the stipulation in the Supreme Court action, she has not fed the pigeons in front of the building.

Lee started by feeding doves. Sometimes pigeons also came to the window. She would feed the pigeons when she saw the doves, sometimes every day and sometimes multiple times a day. Lee prayed for the birds and was saddened by the way the City handled its wildlife. She tried to “do her part” by putting soaked grains out in small pots and food with moisture on the windowsill. There was never an objection to her feeding the birds in the rear of the building since no one was in the back, and she believed there was never a complaint. 

Lee denied knowing she could not feed birds in the back of the building. At first, she did not remember receiving communication from GSKP, which warned her not to feed the birds but later, she remembered the letter dated August 1, 2018, that stated GSKP had proof Lee was feeding the birds and requested her to stop. Lee was confused by the letter since, at the conclusion of the stipulation, she stopped feeding the birds in front of the building due to the complaint that a bird flew into Oak, a commercial store located in front of the building. She distinguished feeding birds in the front and feeding birds and in the back of the building. Lee testified she respects God’s creatures. On cross-examination, Lee stated that no other tenants complained about her feeding the birds, And, on redirect, she further denied receiving complaints from other tenants at the building.

The last witness to testify for GSKP was Saada Roberts, the owner of the building since 2009. The building was previously owned by her mother. Roberts first became aware of “the situation” in 2017 when a metal grate in front of the building was covered with “poop,” at which time she requested that Lee stop feeding the birds. In May 2018, there was bird poop, seeds, and feathers alongside the building, which required her to clear the drain, which was clogged with bird debris, including feathers, seeds, and once a dead bird. GSKP submitted a photograph, taken from the roof, in which bird seeds and a bird were visible outside Lee’s window. Roberts also testified that water also backed up due to the clogged drain, and that caused the roof to “bubble over” and flooding in the basement. There was a time she had to clean the drains every two days. Roberts hired 5 Boro Remodeling, a roofing company, to ensure there were no leaks due to the clogged drain and no leaks were found. After Roberts requested Lee to refrain from feeding the birds, she fed them more frequently. Since the service of the Notice, Lee stopped feeding the birds, and there had been no floods.

Lee, who testified on her own behalf, was 68 years old and had lived at the premises for 43 years since 1978. She described the premises as the fourth floor and part of the third floor, which are connected by a staircase. During the probation period, pursuant to the stipulation in the Supreme Court action, she stopped feeding the birds. Once the period was over, she started to feed the birds again but only from the back of the building because she believed that did not bother anyone. Lee spoke with the employees from the commercial tenant in the front of the building in 2018 and did not receive any complaints from the commercial tenant or other tenants at the building. Had any tenant complained, she would have stopped feeding the birds. Roberts was the only person to complain, and Lee believed that Roberts wanted to evict her. 

Lee fed the birds because New York City was hostile to wildlife, and she was a “good steward of help” with “Christian ethos” as well as an animal activist. Despite her beliefs, Lee testified that she stopped feeding the birds after receipt of the Notice because it adversely affected keeping her home and put her, a senior citizen, at risk for being alone, homeless, and without a place to go. Lee had ties to the community, her church and was part of the bag and drum corps.

On cross-examination, Lee admitted she still fed birds in the neighborhood. But when she fed the birds at the premises, she did not let them in because she was a cat owner. If Lee did rescue a bird, she would bring it to animal welfare. At the conclusion of the Supreme Court action, she was aware that Roberts did not want her to feed birds at the front of the building but believed that the back of the building was different. In summer 2018, she received a letter from Roberts, which requested she stop feeding the birds at the back of the building. But she kept feeding them up through October 2018 when she received the Notice. On re-direct examination, Lee testified that, at the conclusion of the probation, she stopped feeding the birds in the front of the building because the commercial tenant complained. But Lee testified that she truly believed the front and back of the building were different and in the future, she would “never ever” feed the birds again.

The Loft Law was enacted in 1982 to address problems which resulted from the illegal conversion of commercial loft buildings to residential use. The law was designed to provide a framework to transition from Interim Multiple Dwellings into rent stabilization. Accordingly, portions of the Loft Law and the Rent Stabilization Law were to be read together.

The law pertaining to nuisance under the Loft Law and RSC are largely indistinguishable. The Loft Board Regulations provide:

(a) Grounds for eviction. The landlord of an IMD registered with the Loft Board may bring eviction proceedings against the residential occupancy of a unit in a court of competent jurisdiction on any of the following grounds:(2) that the residential occupant is committing or permitting a nuisance in such unit; or is maliciously or by reason of gross negligence substantially damaging the building; or his or her conduct is such as to interfere substantially with the comfort and safety of the landlord or of the other occupants of the same building or of adjacent buildings or structures9 NYCRR §2524.3(b) of the RSC also provides that without the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may be only commenced after service of the Notice required by §2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows:(b) The tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same of an adjacent building or structure by interfering substantially with their comfort or safety.

Under the RSC nuisance is defined as a condition that threatens the comfort and safety of others in the building. Key to the definition of nuisance is a pattern of continuity or recurrence of objectionable conduct.  Case law defined nuisance as a recurring or continuing pattern of objectionable conduct by a tenant that threatened the comfort and safety of others in the building. Not every annoyance will rise to the level of a nuisance. And, in order to prevail on a cause of action for nuisance, the plaintiff must establish a pattern of continuity or recurrence of objectionable conduct which interfered with a person’s interest in the use and enjoyment of land. Furthermore, to constitute a cause of action for nuisance, it was imperative that the conduct affect other residents in the building. Hypothetical impacts did not rise to the level of nuisance. And the Court must weigh the quantitative and qualitative aspects under each specific set of circumstances. 

The Court found that, in this proceeding, GSKP failed to present testimonial or documentary evidence that established that Lee’s conduct interfered with the substantial use and enjoyment of the property by other residents. 

There was no testimony from any other residential, commercial or neighboring tenant which alleged that Lee’s conduct substantially interfered with their use of their apartments or building. Powitz testified that when feces piled up next to an air in-take, disease can be introduced and ,according to the New York City Department of Health website, pigeon droppings cause human diseases such as histoplasmosis, cryptococcosis, and psittacosis . Powitz therefore concluded that Lee’s conduct was a direct nuisance. But GSKP failed to offer test results to prove the presence of bacterial or fungal disease in the bird droppings. Powitz merely supplied scientific and medical evidence, which indicated that pigeons are known to carry some diseases. Hypothetical impacts cannot rise to the level of nuisance. Lastly, although the Court qualified Powitz, as an expert sanitarian, he was not registered as an expert in New York and was not aware of New York Law or if Lee’s conduct was against the law. Accordingly, Powitz was not qualified to determine whether Lee’s conduct constituted a nuisance within the context of a landlord-tenant proceeding. Further, during the one and only time Powitz visited the premises, there was no evidence of any bird feeding or disease as a result of the pigeon droppings.

Roberts testified that Lee’s conduct caused damage to the mortar at the building, clogged the drain, and caused flooding and submitted some photographs which showed birds and bird droppings. But there was no documentary evidence to prove the dates, times, and extent of the alleged damage caused by Lee. GSKP failed to submit any documentary evidence as to the cost of repairing the damage, nor did a contractor or other individual testify as to the work needed to cure the alleged damage.

Lastly, in weighing the quantitative and qualitative aspects under the circumstances, the Court balanced the equities. And looked to the fact that Lee was a senior citizen who had resided in the premises since 1978. Combined with the lack of evidentiary evidence as to how Lee’s conduct impacted other residents and the lack of evidence as to the damages combined with the undisputed testimony that Lee had not fed the birds from October 16, 2018, through February 2021. the Court found that Lee’s alleged conduct did not rise to the level of a nuisance.

After trial, the petition was dismissed.

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