Chelsea 18 Partners, LP v. Sheck Yee Mak

• Decision Date: 03 November 2011
• Citation: 90 A.D.3d 38,2011 N.Y. Slip Op. 07740,933 N.Y.S.2d 204
• Parties: CHELSEA 18 PARTNERS, LP, Plaintiff–Appellant, v. SHECK YEE MAK, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 07740

90 A.D.3d 38

933 N.Y.S.2d 204

CHELSEA 18 PARTNERS, LP, Plaintiff–Appellant,

v.SHECK YEE MAK, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Nov. 3, 2011.

Belkin Burden Wenig & Goldman, LLP, New York (Joseph Burden and Madga L. Cruz of counsel), for appellant.

Benjamin R. Kaplan, New York, for respondents.

DAVID B. SAXE, J.P., JAMES M. CATTERSON, ROLANDO T. ACOSTA, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ.

CATTERSON, J.

In this landlord-tenant dispute, we find that the plaintiff-landlord has the right to bring an action for common-law nuisance in Supreme Court in the face of defendants-tenants' alleged four-year campaign of premeditated and malicious harassment designed to prevent the landlord from collecting lawful rents and effectively managing and operating its building. The landlord's complaint includes a litany of allegations amounting to 159 paragraphs in 43 pages, and the landlord seeks injunctive relief in the form of ejectment of the tenants as well as damages in the amount of $45,205.79 and punitive damages in the amount of $500,000.

We note at the outset that this action is clearly distinguishable from the type of action brought by a landlord in Housing Court where nuisance is a statutorily authorized basis for eviction, and where the action is generally brought for the protection and safety of a third party, namely the other tenants of a building.¹

Hence, not only is Supreme Court a proper forum in this case, but we also find that the landlord's allegations of the tenants' uniquely egregious, scheming and recurring objectionable conduct are simply not amenable to adjudication in a summary proceeding in Civil Court.

The following facts are undisputed: The plaintiff landlord is the owner of a 26–unit walk-up apartment building in lower Manhattan. The defendant tenants are members of a family that occupy two rent-controlled units in the landlord's building. Sheck Yee Mak and Choi Kuen Mak are the tenants of apartment 13, and their son, Michael Mak, is the tenant of apartment 15. The record reflects that the parties have been adversaries in several proceedings in the Housing Part of Civil Court for the tenants' nonpayment of rent, refusal of access, and harassment of other tenants.

In June 2010, the landlord served the tenants with notices of termination pursuant to Administrative Code § 26–408(a)(2). The notice included this warning to the tenants:

“... [U]pon your failure to so quit, vacate and surrender possession thereof, the Landlord will commence an action or proceeding in the Courts of the State of New York to recover possession of the Subject Apartment[s].”

It is undisputed that the tenants continue in possession of the two apartments without permission.

On August 2, 2010, the landlord brought this action in Supreme Court for, inter alia, common-law nuisance, seeking possession and/or monetary damages. By notice of motion dated August 22, 2010, the tenants moved to dismiss the complaint pursuant to CPLR 3211(a)(2) and CPLR 3211(a)(5). They argued that Supreme Court lacks jurisdiction and that the action is barred by the doctrines of res judicata and collateral estoppel.

By order dated October 13, 2010, Supreme Court dismissed the landlord's complaint, describing the action as a “summary proceeding guised as a plenary action.” The court noted that although the landlord seeks injunctive relief and money damages, the plenary action is “enmeshed” with an action seeking possession based on “non-payment of rent/nuisances/non-compliance with prior stipulations between the parties,” and concluded that Civil Court is the proper forum for this action.

For the reasons set forth below, we reverse and reinstate the complaint. As a threshold issue, Supreme Court has unlimited general jurisdiction over all plenary real property actions, including those brought by a landlord against a tenant. N.Y. Const. art. VI, § 7(a); see Nestor v. McDowell, 81 N.Y.2d 410, 415, 599 N.Y.S.2d 507, 509, 615 N.E.2d 991, 993 (1993). Moreover, as the landlord correctly asserts, it is for the plaintiff to determine how, and in which court, to plead its case. Lex 33 Assoc. v. Grasso, 283 A.D.2d 272, 273, 724 N.Y.S.2d 413, 414 (1st Dept.2001) (plaintiff entitled to “chart its own procedural course”). Thus, the tenants are entirely incorrect in asserting that Supreme Court lacks subject matter jurisdiction.

Supreme Court, in its discretion, may decline to review an action it considers appropriately brought in Civil Court. Nestor, 81 N.Y.2d at 415, 599 N.Y.S.2d at 509, 615 N.E.2d 991; see also Cadle Co. v. Lisa, 46 A.D.3d 422, 848 N.Y.S.2d 626 (1st Dept.2007). In this case, however, Supreme Court improvidently exercised that discretion. It clearly failed to understand the thrust of this action as a common-law cause of action for private nuisance arising from the landlord's interest in the use and enjoyment of its property.

In a common-law cause of action for nuisance, the plaintiff must sufficiently plead, and subsequently 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 failure to act.” Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 173, 362 N.E.2d 968, 972 (1977); see also Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 769 N.Y.S.2d 785, 802 N.E.2d 135 (2003) (nuisance is implicated by a pattern of continuity or recurrence of objectionable conduct).

In this case, the landlord alleges the following recurring objectionable conduct: The tenants illegally altered plumbing in both apartments, switching the position of the sink and the bathtub, and added outlets, switches and fixtures creating a hazardous electrical condition with exposed wiring. They then complained to the New York City Department of Buildings (hereinafter referred to as “DOB”) that the plumbing and electric in the apartments were defective, and the DOB and Environmental Control Board issued violations against the landlord requiring it to repair the tenants' handiwork. The tenants thwarted the landlord's attempts to cure the violations by refusing access to the apartment, and then applied for rent reductions based on the very same conditions that they refused to allow the landlord to repair. Over a period of three years, the tenants procured 76 Housing and Preservation Department violations against the landlord. No violations were lodged concerning other tenancies in the building.

The complaint further alleges that the tenants not only unjustifiably denied or failed to arrange access, but also, knowing of the agency and court-imposed deadlines, attempted to extort extra work from the landlord in return for access, such as a new linoleum floor and bathtub of the tenants' choosing; and that tenant Michael Mak attempted to coerce the building superintendent to agree to a $50,000 penalty if the workers were late or the work was not completed to code.

Of the 21 instances of denial of access catalogued in the landlord's complaint beginning in February 2008, only Michael Mak's denial of access to apartment 15 from November 2009 to March 2010 was addressed in a March 24, 2010 holdover proceeding and was settled...