[*1]
Ho Foong Shiu Realty Corp v Pullman
2014 NY Slip Op 51656(U) [45 Misc 3d 1220(A)]
Decided on November 24, 2014
Civil Court Of The City Of New York, New York County
Kraus, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 24, 2014
Civil Court of the City of New York, New York County


Ho Foong Shiu Realty Corp, Petitioner-Landlord

against

Keri Pullman, Respondent-Tenant "JOHN DOE" and/or " JANE DOE" Respondents-Undertenants




L & T 54842/14



STEVEN T. GEE, P.C.



Attorneys for Petitioner



121 Chrystie Street



New York, NY 10002



212-334-8838



JOHN T. MAHER, ESQ.



DIANA A. JARVIS, ESQ.



Attorneys for Respondent



90 Broad Street, 3rd Floor



New York, NY 10004



646-675-8909


Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by HO FOONG SHIU REALTY CORP(Petitioner) against KERI PULLMAN(Respondent), the rent stabilized tenant of record, seeking to recover possession of Apartment 3B at 56 AVENUE C, New York, NY 10009(Subject Premises) based on the allegations that Respondent has breached her lease and created a nuisance by keeping a dog which barks excessively in the Subject Premises



PROCEDURAL HISTORY

Petitioner issued a Ten Day Notice to Cure dated January 6, 2014. The Notice is issued pursuant to § 2524.3(b) of the Rent Stabilization Code and asserts that Respondent's dog has barked incessantly at night, every day for a year, disturbing other tenants in the building. The Notice asserts that this is a violation of Respondent's lease and the Rent Stabilization Code. The Notice asserts Petitioner had received " ... many complaints from the tenants in the building about this noise problem. The barking is so loud at times that it can be heard on virtually all floors of the building." The notice gave Respondent until January 21, 2014 to cure.

Petitioner issued a Ten Day Notice to Terminate on January 22, 2014, terminating Respondent's tenancy effective February 11, 2014. The Notice of Petition and Petition are dated February 13, 2014.

The proceeding was initially returnable on March 3, 2014. Respondent appeared by counsel on the initial return date, and the parties entered a stipulation, wherein Respondent waived any traverse defenses and agreed to pay use and occupancy pendente lite.

On April 16, 2014, Respondent moved to dismiss the petition. The motion was withdrawn pursuant to stipulation on the return date. A general denial was deemed asserted on the part of Respondent, and the proceeding was adjourned to April 18, 2014.

On June 10, 2014, the Court (Spears, J) denied Respondent's motion for an order permitting her to file an amended answer, and the proceeding was assigned to Part L for trial. The trial commenced on that day, and continued and concluded on October 8, 2014. The proceeding was adjourned to October 17, 2014, for post trial submissions, and the Court reserved decision on said date.



FINDINGS OF FACTPetitioner is the owner of the Subject Premises pursuant to a deed dated November 22, 1999 (Ex 1). Respondent is the rent stabilized tenant of record, pursuant to a original lease dated August 15, 2008 (Ex 4), and most recently renewed for a period through and including February 28, 2014 (Ex 5). Paragraph 20(1) of Respondent's lease provides "(t)he comfort or rights of other Tenants must not be interfered with. This means that annoying sounds, smells and lights are not allowed."



The legal registered rent for the Subject Premises is $1973.40, as of July 1, 2013. The registration indicates Respondent pays a preferential rent of $1900.00 (Ex 3). The Subject Premises are properly registered as a multiple dwelling with Department of Housing Preservation and Development (Ex 2).



Respondent has been living in the Subject Premises for five years. Respondent had a dog when she moved in, and there were no incidents with her dog. In January 2013, Respondent got a new dog (Izzy). Izzy is a rescue dog, who was abused by her prior owners, and suffered from separation anxiety. Izzy is a medium sized mix breed and was scheduled to be killed when Respondent adopted her. Respondent retained a behaviorist and a trainer to help Izzy overcome her separation anxiety. When Respondent first adopted Izzy, Respondent had a job that required her to work at night. Respondent has since changed jobs and now works during the day. Respondent now operates her own business, and this allows her to be home with Izzy more, and to take Izzy with her to work. Respondent admitted Izzy barked a lot when Respondent first adopted her, but the separation anxiety has improved and excessive barking is no longer a problem. Respondent was able to monitor Izzy's progress and behavior at the Subject Premises with an on line camera which is triggered by noise and can be viewed from Respondent's phone. Respondent used this for a period after Izzy was trained to monitor Izzy's behavior at the Subject Premises when Izzy remained home alone.



Respondent is friendly with other tenants in the Subject Premises, but states that the tenants in Apt 2B are not friendly, and have complained about music and noise from the Subject Premises. No other tenants in the building have complained to Respondent about Izzy except the tenants from apartment 2B.



The only tenants to testify that they are disturbed by Izzy at trial were Kathy Kemp (Kemp) and Thomas Hughes (Hughes), the tenants from apartment 2B. Kemp and Hughes are married and reside in apartment 2B, directly underneath the Subject Premises. Kemp has lived in 2B for nineteen (19) years. Hughes moved in with Kemp approximately twelve (12) to fifteen (15) years ago, and they currently reside with their eight (8) year old son and ten (10) year old dog.



Kemp and Hughes testified that in January 2013 they immediately complained to [*2]Respondent about Izzy. They testified that Izzy would bark incessantly when left alone. Kemp acknowledged that the problem subsided after six months, but testified that as of the time of the trial, there were still disturbances approximately three times a week. Hughes also complained that he can hear Izzy moving around the Subject Premises, and is disturbed by said noise. Hughes leaves for work at 5 am and is particularly sensitive to noises in the evening. Hughes also acknowledged that the barking has become much better by the Spring of 2014, but still feels disturbed by the barking. Hughes also testified that he is afraid of Izzy, but the Court found this testimony to lack credibility, nor are there any related allegations in the petition. The Court also did not find Hughes' complaints about being disturbed from Izzy's movement's in the Subject Premises to be reasonable.



The only other tenant who testified at trial was Wilma Quinones (Quinones) who lives directly above Respondent in apartment 4B. Quinones testified on behalf of Respondent. Quinones has lived in the Subject Premises since 1976. Quinones credibly testified that while she heard Izzy bark when Respondent first adopted Izzy, she no longer hears Izzy barking.Quinones has never been disturbed by Izzy's barking, and had not heard Izzy bark at all in the six months prior to her testimony.



DISCUSSION

In order to establish a cause of action for nuisance, it is Petitioner's burden to establish Respondent's behavior constituted a continuous invasion of the rights of other tenants in the Subject Building [Frank v Park Summit Realty Corp 175 AD2d 33].

Petitioner has failed to meet its burden at trial of establishing a nuisance or breach of lease by a preponderance of credible evidence. The predicate notice herein asserted many tenants have complained about the barking and that it can be heard everywhere in the building. Yet only tenants from one apartment testified that the barking is a nuisance, and no other tenants testified in support of Petitioner's claim.

Both Respondent and Quinones credibly testified that Izzy is a well behaved citizen." ... (W)hile noise has been found to establish nuisance, this has typically been where more than one tenant complains about the alleged noise [Prince George Associates L.P. v Mais 44 Misc 3d 1202(A)]." Often times when only one apartment is complaining, the dispute is more about two neighbors who don't get along then a pervasive nuisance condition. The email correspondence between Kemp and Hughes and Respondents shows that these neighbors did not get along (see eg Ex 8 a-I).

Similarly, while courts have found that a dog's behavior can constitute a nuisance this is typically when multiple tenants in the building are adversely affected by the dog's behavior [see eg Brodcom West Development Co. v Best 23 Misc 3d 1140(A) (four tenants testified to disturbances from Respondent's dog, which included excessive barking, the dog roaming off leash and the dog urinating and defecating in public areas of the building). Here evidence that any tenant other than the tenants of 2B were disturbed by Izzy is conspicuously absent from the record.

Finally, while the Court found the testimony of Kemp and Hughes regarding the barking to be credible, the Court found the testimony of Respondent and Quinones to be equally credible. Where the evidence is equally balanced, the court must find that Petitioner has failed to meet its burden [D'Amico v Manufactures Hanover Trust Co. 173 AD2d 263; St Owner LP v Bonczek 19 Misc 3d 1139(A); Masaryk Towers Corp v Vance 12 Misc 3d 1172(A)].

On this record, the Court finds Petitioner failed to establish that Izzy's barking creates a [*3]nuisance at the Subject Premises by a preponderance of credible evidence. Neither did Petitioner establish a breach of lease by the evidence presented at trial.

CONCLUSION

Based on the forgoing, the proceeding is dismissed.



This constitutes the decision and order of the Court.[FN1]



Dated: New York, New York

November 24, 2014

Sabrina B. Kraus, JHC



TO:



Footnotes


Footnote 1:Exhibits may be picked up within thirty days of the date of this decision from the second floor record room located at 111 Centre Street. After thirty days, the exhibits may be shredded in accordance with administrative directives.