Domen Holding Co. v. Aranovich

• Decision Date: 24 November 2003
• Citation: 1 N.Y.3d 117,802 N.E.2d 135,769 N.Y.S.2d 785
• Parties: DOMEN HOLDING CO., Appellant, v. IRENE S. ARANOVICH, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 117

802 N.E.2d 135

769 N.Y.S.2d 785

DOMEN HOLDING CO., Appellant, v. IRENE S. ARANOVICH, Respondent, et al., Defendants.

Court of Appeals of the State of New York.

Argued October 23, 2003.

Decided November 24, 2003.

Greer & Associates, P.C., New York City (Ida Rae Greer, Melinda P. Lisanti and Stephanie H. Goodman of counsel), for appellant.

MFY Legal Services, Inc., New York City (Adele Bartlett, Lynn M. Kelly, Andrew Goldberg and Jeanette Zelhof of counsel), for respondent. Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York City (Jeffrey R. Metz of counsel), for Rent Stabilization Association of N.Y.C., Inc., amicus curiae.

Brooklyn Legal Services Corp. B., Brooklyn (John C. Gray and Jennifer Levy of counsel), for Legal Aid Society and another, amici curiae.

Chief Judge KAYE and Judges G.B. SMITH, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

CIPARICK, J.

Plaintiff, Domen Holding Co., is the owner and landlord of a residential building in Manhattan. Pursuant to a written apartment lease dated August 26, 1991 and subsequent renewal, defendants Irene S. Aranovich and her brother Jorge Aranovich are named tenants of a rent-stabilized apartment in that building. Mr. Aranovich no longer lives in the apartment. However, at some point during the tenancy, defendant Geoffrey Warren Sanders moved in with Ms. Aranovich. Since at least 1995, the landlord has received a number of complaints stemming from incidents involving Sanders. On more than one occasion, plaintiff provided Ms. Aranovich with written notice of the complaints and reminded her of her responsibility for the behavior of her guests.

In October 2000, plaintiff served a notice of termination upon the Aranovich tenants alleging that they were condoning and had failed to curtail Sanders' "persistent pattern of antisocial and outrageous behavior," which endangered the building's tenants and staff. The notice alleged that Sanders' behavior included, but was not limited to, the following:

"(a) . . . (1) On or about the evening of August 30, 2000, Sanders was involved in an altercation with Wayne Ellis, one of the Owner's doormen at the building, which altercation entailed Sanders' use of profanity and racial epithets toward Mr. Ellis, and threatening physical injury to him. The police were called to the building and a complaint report number (10831) assigned.

"(2) On or about June 7, 1997, Sanders was involved in an altercation with Thomas DeRosa, who is the visually impaired tenant of the apartment directly above the Subject Premises. Said incident involved Sanders going to Mr. DeRosa's apartment to complain to Mr. DeRosa of alleged noise emanating from Mr. DeRosa's apartment, resulting in Sanders' subsequent verbal abuse and threats to physically assault Mr. DeRosa. The police were called to the building and Mr. DeRosa filed a criminal harassment complaint against Sanders with the New York Police Department . . . .

"(3) On or about November 8, 1995, an incident occurred between Sanders and the building superintendent wherein the police were called to the building and a complaint was issued against Sanders.

"(b) Sanders' conduct in persistently instigating arguments and altercations with others at the building, and his frequent and persistent use of profanity and racial slurs to and verbal intimidation of others at the building, is interfering with the other tenants' and/or occupants' comfort and rights to quiet enjoyment of their apartments.

"(c) Sanders' aggressively antagonistic conduct continues to occur and is likely to occur again in the future."

Ms. Aranovich and Sanders remained in possession of the apartment beyond October 16, 2000, the termination date set forth in the notice, and plaintiff commenced this action seeking an order of ejectment. Ms. Aranovich answered, interposing a counterclaim for breach of warranty of habitability.¹ Plaintiff then moved for summary judgment. In support of its motion, plaintiff submitted the affidavits of Wayne Ellis, Thomas DeRosa and Vincent Giffuni, a partner in plaintiff partnership.

Ellis' affidavit recounted the August 2000 incident, which allegedly began after Sanders slammed his fist against a building door. The affidavit continued that in response to Ellis' question—"why he had hit the door"—Sanders used a racial slur and made similarly offensive comments, telling Ellis he "should speak to white people more respectfully." Sanders also asked Ellis to "step outside." Ellis further alleged that, since the service of the notice of termination, Sanders has confronted him, stating that he had a problem with Ellis and that he had a "nice crew for [him]." According to Ellis, "[a]s a doorman at the building, it is impossible for me to avoid Sanders as he enters and exits the building. I continue to fear that Sanders will one day carry out his threats."

DeRosa witnessed the August 2000 incident and his affidavit corroborated Ellis' affidavit in that regard. In addition, DeRosa described the June 1997 encounter, wherein Sanders allegedly complained that DeRosa's dog made too much noise and Sanders had threatened to physically harm DeRosa. The police report relating to this incident stated that Sanders specifically threatened DeRosa, saying "I would stomp in your head the way you stomp on the floor."

The affidavit of Vincent Giffuni alleged that the November 1995 incident between Sanders and the then-building superintendent involved Sanders shoving and shouting profanities at the superintendent. In addition, plaintiff submitted a copy of a letter written to Ms. Aranovich addressing that altercation and noting that it was not the first involving Sanders. Additional correspondence between the landlord and Ms. Aranovich and police complaints referencing the above incidents were also submitted.

Ms. Aranovich cross-moved for summary judgment dismissing the complaint, contending that plaintiff failed to state a cause of action for nuisance. Specifically, she argued that the three incidents alleged in the notice of termination did not endanger other tenants or staff and were too remote in time to constitute a nuisance.

Supreme Court denied plaintiff's motion for summary judgment and granted the cross motion for summary judgment dismissing the complaint.² The court held that the "three isolated instances" of Sanders' conduct were insufficient as a matter of law to state a claim for nuisance and that, although the notice and affidavits referred to other instances of antisocial conduct, no record evidence existed to support those allegations. The Appellate Division, with two Justices dissenting, affirmed. Explicitly limiting its review to the allegations set forth in the notice of termination, the Court held that, as a matter of law, the three instances, to the extent they were documented in the notice, were insufficient to establish an actionable claim for nuisance warranting eviction. The two dissenting Justices opined that an issue of fact was presented whether Sanders' conduct constituted a nuisance. Plaintiff appeals as of right pursuant to CPLR 5601 (a). We agree with the dissenting Justices and hold that the Appellate Division order should be modified to deny Ms. Aranovich's cross motion for summary judgment, reinstate the complaint and remit to Supreme Court for a trial on the issues.

Analysis

The Rent Stabilization Code provides that no tenant shall be evicted "unless and until the owner [gives] written notice to such tenant . . . [which states] [1] the ground under section 2524.3 . . . upon which the owner relies for removal or eviction of the tenant, [2] the facts necessary to establish the existence of such ground, and [3] the date when the tenant is required to surrender possession" (9 NYCRR 2524.2 [a], [b]).³ Section 2524.3 includes as a ground for eviction circumstances where "[t]he tenant is committing or permitting a nuisance in such housing accommodation or...