Theroux v. Resnicow
| Docket Number | Index No. 154642/2017 |
| Decision Date | 28 August 2023 |
| Citation | 2023 NY Slip Op 50902 (U) |
| Parties | Justin Theroux, Plaintiff, v. Norman J. Resnicow, Barbara Resnicow, 71 Washington Place Owners, Inc., and Board of Directors of 71 Washington Place Owners, Inc., Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Pryor Cashman LLP, New York, NY (Eric D. Sherman, Bryan T. Mohler and Daniel V. Derby of counsel), for plaintiff.
Peter M. Levine, Esq., New York, NY, for defendants Norman J Resnicow and Barbara Resnicow.
The following e-filed documents, listed by NYSCEF document number (Motion 013) 682, 683, 684, 685, 686, 687, 688, 689, 690 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832, 833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 845, 1034, 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1083, 1086, 1087, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126 were read on this motion for PARTIAL SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 014) 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 844, 846, 858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 871, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 962, 963, 964, 965, 966, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976, 977, 978, 979, 980, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1080, 1082, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1127 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 015) 538, 539, 540, 853, 854, 855, 856, 857, 1081, 1116, 1128 were read on this motion to STRIKE JURY DEMAND.
Plaintiff, Justin Theroux, and defendants, Norman Resnicow and Barbara Resnicow, are neighbors in a co-op apartment building. Theroux and the Resnicows have been engaged since 2015 in a bitter, ongoing series of quarrels that led to this action.
Theroux's amended complaint, as supplemented by leave of court during the action, asserts claims for trespass (and an accompanying request for declaratory relief) and for private nuisance, and seeks an award of both compensatory and punitive damages.
In 2019, this court granted Theroux's motion for partial summary judgment on liability with respect to his claims for trespass and a declaratory judgment. (See Theroux v Resnicow, 2019 NY Slip Op 31819[U] [Sup Ct, NY County June 25, 2019].) The Appellate Division, First Department, affirmed this court's trespass-related liability rulings in 2020. (See Theroux v Resnicow, 187 A.D.3d 654 [1st Dept 2020].)
On motion sequence 013, Theroux now moves for partial summary judgment on liability with respect to his claims for private nuisance against Norman Resnicow-the first and fifth causes of action in the combined amended/supplemental complaint. These claims arise from what Theroux alleges to be a "targeted and malicious years-long harassment campaign" to deprive him of "his right to use and enjoy his property," in response to his refusal to install soundproofing in the floor of his apartment, which is directly above the Resnicows' apartment. (NYSCEF No. 855 at 1.) Theroux also moves for summary judgment dismissing the Resnicows' affirmative defenses and counterclaims. In addition to opposing Theroux's motion, the Resnicows cross-move for summary judgment dismissing Theroux's private-nuisance claims.
On motion sequence 014, the Resnicows move for summary judgment dismissing Theroux's claims for various forms of damages on his trespass and nuisance claims. The Resnicows also move, in the alternative, to preclude Theroux from submitting evidence at trial with respect to one aspect of his nuisance claims: Fees that Theroux claims he paid his business manager to help him deal with some of Norman Resnicow's alleged nuisance behavior.
On motion sequence 015, the Resnicows moves to dismiss Theroux's demand for a jury trial.
Motion sequences 013, 014, and 015 are consolidated here for disposition.
Theroux's partial-summary-judgment motion (mot seq 013) is granted in part and denied in part. Theroux has established as a matter of law that various aspects of Norman Resnicow's behavior toward him constitute a private nuisance-an intentional, unreasonable, interference with Theroux's use and enjoyment of his apartment. Resnicow's principal argument, that he cannot be held liable for nuisance because all of his conduct at issue was legally permissible, is without merit. The Resnicows' cross-motion to dismiss Theroux's private-nuisance claims is denied.
This court also concludes that Theroux has established as a matter of law that the Resnicows' affirmative defenses should be dismissed. The court reaches a different conclusion, however, with respect to Theroux's request to dismiss the Resnicows' eight remaining counterclaims. Theroux has shown that the Resnicows' claims for damages on two of the counterclaims (each sounding in trespass) should be dismissed in part-compensatory and punitive damages on the third counterclaim, and punitive damages on the fifth counterclaim. Otherwise, the Resnicows have shown that a jury must resolve factual issues remaining on their counterclaims.
The Resnicows' summary-judgment motion (mot seq 014) is largely denied. The Resnicows raise legitimate questions about the extent and basis of Theroux's claimed compensatory damages in trespass and nuisance. But, with one exception, the Resnicows have not established as a matter of law that Theroux is not entitled to any compensatory damages on these claims, as required to obtain summary judgment. (The exception is the amount Theroux paid design professionals with respect to the repair of an exterior balcony and staircase, which this court concludes is not a cognizable form of damages in nuisance on the facts in this case.) That exception aside, a jury must decide the amount of compensatory damages to which Theroux is entitled. The Resnicows also do not show that Theroux's claims for punitive damages, and his claim for attorney fees under 22 NYCRR 130-1.1, fail as a matter of law. And this court is not persuaded that Theroux should be subject to a discovery sanction precluding him from submitting for damages purposes evidence of the fees he paid his business manager, as the Resnicows request.
The Resnicows' motion to strike Theroux's jury demand (mot seq 015) is denied. The Resnicows contend that Theroux waived his right to a jury trial by combining damages claims with a request for a declaratory judgment, which they assert to be equitable relief. But Appellate Division precedent makes clear that whether declaratory relief is legal or equitable for jury-trial purposes depends on the nature of the claims lying behind the request for a declaration: I.e., the claims plaintiff would have asserted absent the availability of the declaratory-judgment device. Here, this court concludes, those claims would seek money damages in trespass and nuisance-classic forms of legal relief that a plaintiff has a right to have determined by a jury.
On motion sequence 013, Theroux seeks summary judgment in his favor on liability on his private-nuisance claims against Norman Resnicow (the first and fifth causes of action in the combined amended/supplemental complaint). The Resnicows cross-move for summary judgment dismissing these claims. This branch of Theroux's...
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