BACKGROUND

This summary holdover proceeding was commenced by 122 D BROADWAY, LLC (Petitioner) against JOAN WEINBERG (Respondent) the rent controlled tenant of record, seeking to recover possession of 3111 Broadway, Apt 4C, NEW YORK, NY 10027 (Subject Premises) based on the allegation that Respondent, has created a nuisance in the Subject Premises through interfering with the performance of the Superintendent's duties; and making loud disturbing noises, shouting, banging on the ceiling, and calling the police, aimed primarily at disturbing the tenants in apartment 5C of the subject building.

The petition is dated August 14, 2012, and the proceeding was initially returnable August 29, 2012.

Respondent never filed an answer, and is thus deemed to have interposed a general denial.

On November 5, 2012, Respondent appeared by counsel, and the parties entered into a stipulation of settlement (November 2012 Stipulation). The Stipulation provided that Respondent consented to the jurisdiction of the court, and without making and admissions, provided "Respondent hereby agrees that she will not engage in any of the kind of conduct alleged in paragraph 8 of the Petition, or in any other conduct interfering substantially with the comfort and safety of other tenants and occupants of the Building ..." for a 15 month probationary period. On default, Petitioner was entitled to restore the proceeding for relief.

On February 25, 2013, Petitioner moved for an order restoring the proceeding to the calendar, based on the allegation that Respondent had breached the stipulation. The motion was supported by an affidavit from Younngbin Son (Youngbin), one of the tenants of record of Apartment 5C. Youngbin, in an affidavit dated January 31, 2013, stated she is a law student at Columbia University and that she hand her sister had been harassed from the first date they moved into apartment 5C. The harassment consisted of Respondent banging on her ceilings and yelling profanities.

Additionally specific incidents were alleged:

Respondent made a second false complaint on January 4, 2013 at 11 pm again causing police to arrive at apartment 5C, see there was no disturbance and leave.

On December 31, 2012, just prior to midnight Respondent began to buzz on the intercom for Apartment 5C, after the buzzing Respondent approached apartment 5C and when asked why she had done it Respondent answered that she had hired an investigator and would see them in court; and

Incidents of loud banging on th ceiling and yelling profanities which were alleged to have taken place on: January 3, 2013 at 3 am; January 4, 2013 at 5:30 pm; January 9, 2013 at 9:30pm, 10:30 pm, and 11:30 pm; January 10, 2013 from 5 to 6 pm; and January 11, 2013 at 12:42 am.

The motion was supported by the affidavit of three other witnesses detailing further breaches.

No opposition papers were submitted to the motion, but Respondent's counsel cross-moved for an order appointing a GAL for Respondent. In the cross-motion Respondent's counsel stated that Respondent:

... suffers from extreme anxiety that has been heightened as this case has progressed and exacerbated over these past few weeks as she has been made aware that the landlord planned to bring her back to court to seek her eviction and has reviewed the motion to restore papers replete [*3]with allegations and demands that adversely affected her fragile mental state.

Respondent Weinberg's anxiety has been exhibited in the repeated phone calls to counsel and messages that she leaves counsel insisting that she be called back immediately. These repeated calls and their content demonstrate her extreme anxiety and inability to handle the stress of the proceeding and adequately defend herself.

The court (Kaplan, J) denied Respondent's motion for a GAL without prejudice, finding that absent medical evidence there was an insufficient basis to justify appointment of a GAL over Respondent's objection, and granted Petitioner's motion to the extent of setting the matter down for a hearing on April 8, 2013.

On April 8, 2013, the proceeding was assigned to Part R for the hearing and the court (Elsner, J) sua sponte appointed Thomas Giles as GAL for Respondent pursuant to a written order. The hearing commenced and after the testimony of Youngbin, on August 7, 2013, the parties entered into a second stipulation of settlement (August 2013 Stipulation).

In the August 2013 Stipulation, Respondent consented to entry of a final judgment of possession, and issuance of the warrant of eviction. A second probationary period was agreed to through August 7, 2015, on default, Petitioner could restore for permission to execute the warrant. The August 2013 Stipulation provided that the terms of the November 2012 Stipulation remained in full force except as amended. The August 2013 Stipulation further provided:

Without admitting the allegations in the Petition, Respondent hereby agrees that she will not engage in any conduct alleged in the Petition, or similar conduct, or any other conduct that interferes substantially with the comfort and safety of other tenants of apartment 5C.

And further provided that Petitioner would not seek to restore for a breach prior to August 31, 2013, "... to provide Respondent with an opportunity to make arrangements to seek assistance and care ("temporary stay")." In the event Petitioner moved alleging a breach the August 2013 Stipulation provided "... Respondent shall produce any and all records of efforts made by her during the Temporary Stay to obtain counseling or other assistance she deems appropriate, as discussed, if Respondent does not produce such records on the return date of the motion, such omission shall constitute a substantial breach of this Stipulation sufficient to permit Petitioner to execute the warrant of eviction."

The warrant of eviction issued August 16, 2013.

Respondent submitted a brief denial of the allegations and really failed to establish that she had made any good faith effort to obtain counseling since August 2013. Respondent's attorney alleged in his October 31, 2014 affirmation in opposition that "(u)pon information and belief, although respondent was in contact with SPOP (Special Program for Older People), a not-for-profit organization in Manhattan that provided psychiatric and other services to mentally ill senior citizens, during the aforesaid temporary period, respondent ultimately saw a private [*4]psychotherapist." Counsel further argued that whether or not Respondent sought assistance or care since the August 2013 stipulation was irrelevant.

On November 7, 2014, the motion was granted by the court (Stoller, J) to the extent of setting the matter down for a hearing on January 29, 2015, pursuant to an order which provided in pertinent part:

The Court denies so much of Petitioner's motion as seeks a vacatur of the stay of execution of the warrant without a hearing, as Respondent complied the provision of the stipulation dated August 7, 2013 requiring that she provide records of efforts made ... to obtain counseling pr other assistance' insofar as Respondent produces a letter from one Dr. Martin A. Hurwitz, identified as having an affiliation with a Board of Psychiatry, indicating that Respondent has been seen and evaluated.

On February 18, 2015, the hearing commenced before this Court. The hearing continued on February 19, and concluded on February 20, 2015. The proceeding was adjourned to March 2, 2015, for the submission of memoranda, and on March 2, 2015, the court reserved decision.

FINDINGS OF FACT

Respondent has been the tenant of the Subject Premises for over three decades.

Mark Brucato (Brucato) was the first witness to testify for Petitioner. Brucato is employed as a managing agent by Heller Realty. His duties include overseeing collection of rent, basic maintenance, repairs, daily operations of the building and addressing landlord tenant complaints. Heller Realty is the agent for Petitioner. Brucato has been working as a managuing agent for the subject building for approximately eight years.

The subject building has forty apartments on six floors.

Brucato is also the registered managing agent for the subject building and is at the building three to four times per week.

Brucato testified to encounters with Respondent, where Respondent would scream curse words at Brucato, and demand that he stop sound waves from entering the Subject Premises. Brucato investigated Respondent's noise complaints and found them unfounded. Since the August 2013 Stipulation, Brucato has received numerous phone calls from the tenants in 5C and complaints from the Super regarding Respondent's conduct. There have also been incidents since August 2013, that resulted in the police and firemen being called to the Subject Premises.

The subject building has seven cameras, one over the Super's door, three in the lobby and three in the hallways outside the C line apartments on the fourth, fifth and sixth floors. The cameras are triggered by motion to record, and are connected to a high definition recording device. Recordings can be accessed with a password, both Brucato and Super have a password to access recordings. The recording indicates the date and time. The cameras have been in the building since November 2014.

For the camera on the fifth floor, the recording device is in the trash compactor room close to the ceiling in a lockbox. There is a monitor in the lockbox. Both Brucato and the Super can access the recording device with a key or remotely by using their password. Brucato [*5]transferred a video clip from his computer to the flash drive, and offered the video into evidence. The video shows Respondent in front of Apartment 5C on November 22, 2014, damaging the entrance door to apartment 5C (Ex 1). Apartment 5C was vacant at the time the video was taken.

Yubin Son and Young Bin Son were the last tenants of record of Apartment 5C, and had given Brucato the keys for that premises when they moved out on November , 2014. As of the date of the hearing, apartment 5C remained vacant.

Brucato has spoken with Respondent on the phone on four or five occasions since August 2013, and Brucato has spoken to Respondent on approximately four occasions in person since that time. The last time Brucato spoke with Respondent was in 2014, Respondent complained about sounds from apartment 5C and threatened Brucato that if he did not give her $100,000, she would make his life " a living hell."

The next witness to testify for Petitioner was Henry Garcia (Garcia). Garcia lives in a lobby apartment in the subject building, with his wife and three children, who are aged 2, 5 and 18. Garcia has been the Super for the building since December 1, 2002. Garcia's duties include cleaning the building, collecting the garbage, addressing tenant complaints and making repairs.

On October 28, 2013, Respondent complained to Garcia that her front door was scratched and needed to be painted. On May 22, 2014, Respondent complained to Garcia that the lock on her front door was broken.

On September 10, 2014, Garcia was cleaning the sidewalk and four police cars stopped in front of the building at approximately 9:30 am. Garcia responded to questions from the police at that time. Garcia spoke to the police for approximately one half hour. Garcia admitted the police into the building and the police took the elevator to the fourth floor. Garcia later saw them leave. There were between seven to eight policeman at the building.

On November 22, 2014, there was another incident at 4:20 am. Respondent started ringing Garcia's doorbell. Respondent pressed on the doorbell for approximately one to two minutes. Garcia had been asleep, but woke up and opened the door and Respondent was standing there with another woman. Respondent was again claiming that someone had broken the lock to her front door. Later that day, Garcia investigated Respondent's claim and determined that the lock was working.

Respondent has four locks on her door and Garcia does not have keys to any of those locks.

Respondent started cursing at Garcia and using racial slurs regarding Garcia. Respondent also threatened Garcia and his family. Respondent told her companion to call 911 to have Garcia "locked up," because Respondent accused Garcia of breaking the door lock.

Garcia made a recording of the November 22, 2014 incident. The recording was admitted into evidence. The recording is at 4 am and on it Respondent repeatedly curses at the Super, for example calling him a "Fucking bastard" and Respondent, while laughing tells Garcia, in a frightening and chilling manner that death will come to him and his family and children "will be underground." Respondent does not sound sane on the recording, Respondent sounds crazy, angry, belligerent and potentially dangerous.

Respondent got into her apartment on November 22, 2014, after the police arrived and used Respondent's keys to open the door to the Subject Premises.

On January 6, 2015, Respondent called Garcia on his home phone at approximately 3am. Garcia was asleep. Respondent claimed that someone had broken her door and that she was unable to access her apartment. Respondent began to curse at Garcia and threatened to sue him [*6]and to make him and his family miserable. After one or two minutes, Garcia hung up the phone. At approximately 6:30 am Respondent rang Garcia's bell, when Garcia opened the door, Respondent was with the police and tried to push her way into Garcia's apartment.

The police came in to speak with Garcia. Garcia told the police that Respondent's door had been repaired and no further repairs were needed. The police remained in Garcia's apartment for approximately fifteen minutes, speaking with Garcia. Garcia's son was traumatized by the incident. Later that morning at approximately 10:30 am two detectives came to speak with Garcia. Garcia provided the detectives with access to the building, his office and to the cameras and recording system. The police stayed for approximately two hours.

The police returned on Saturday January 10 to look at video footage. The police remained for approximately one and half hours.

Generally, when Respondent passes by Garcia she curses at him and makes disparaging remarks about his Hispanic heritage. Garcia sees respondent approximately twice a day.

On three occasions in October 2014, Garcia observed Respondent in front of the building and in the common areas of the building with a metal bar, which he considered to be a weapon. The metal bar is approximately 24 inches long and Respondent carries it in a plastic bag.

Garcia will not get into an elevator with Respondent, and Respondent's behavior has caused Garcia to fear for the safety of himself and his family. Respondent's hateful racial slurs make Garcia feel bad. Garcia is proud of having become an American Citizen. Garcia installed a camera outside his apartment on January 9, 2015, to protect himself and his family from Respondent. Garcia is also afraid that Respondent will intentionally hurt herself and blame her injuries on Garcia. Garcia has observed Respondent hitting herself, pulling her hair and stating that she is going crazy.

The court found Garcia to be a very credible witness. Respondent's intentional harassment of Garcia and his family has continued unabated after the August 2013 Stipulation, understandably causing Garcia to fear for the safety of himself and his family, subjecting him to the repeated humiliation of cursing and racial slurs, and leading him to seriously contemplate quitting his job and leaving his home.

The next witness called by Petitioner was Yoobin Son (Son), one of the former tenants of apartment 5C. Son is a professional musician and lived in the subject building from September 2012 through November 2014. Son is a flutist with the New York Philharmonic Orchestra. Son plays concerts four to five nights per week and attends rehearsals in the afternoons.

Son was harassed by Respondent from the time she first moved into apartment 5C. Since August 2013, the harassment continued on a daily basis. Respondent bangs loudly from the Subject Premises. Respondent uses some type of object to continually bang her ceiling. The banging can go on for a half hour at a time or sometimes for hours. The banging can take place at all hours, incidents took place at 5 am and at noon time.

On September 15, 2014, right after Son returned home from rehearsal, at approximately 6:30 pm, and the intercom was being buzzed from downstairs for ten consecutive minutes. It was very loud. Respondent went downstairs and saw Respondent with another woman, whom [*7]Son believes is Respondent's sister. They were buzzing the intercom for Apartment 5C. Son asked why they were doing this, Son tried to address Respondent's sister, because she knew she could not communicate with Respondent. The sister began to curse at Son. The sister called Son a "bitch" and a "cunt," then Respondent joined in the cursing. Son was terrified, she started to walk away and called 911. Son waited over an hour to return to her apartment. When Son returned at approximately 7:30 pm, Respondent was loudly banging on the ceiling of the Subject Premises. Son could hear Respondent screaming from downstairs, but could not make out what Respondent was screaming.

On September 16, 2014, Respondent banged loudly for a half hour.

On September 17, 2014, at 8:17 am Son was woken up by Respondent's really loud banging. The banging continued for 30 minutes. Son was very frightened.

On September 19, 2014, at 6 pm Son was trying to nap and her boyfriend was in the shower. The intercom buzzed really loudly for ten consecutive minutes. Son's boyfriend went downstairs to see what the cause was, and Respondent was buzzing.

On September 20, 2014, at 2pm Respondent started banging really loudly and continued for thirty minutes. Later that day, at 6:40 pm, Respondent began yelling and screaming, even though most of the words Respondent yelled were intelligible, the word "fuck" was clearly intelligible, and the yelling and screaming frightened Son.

On September 24, 2014, at 5:15 am two police officers appeared at Son's door. This was not the first time Respondent had caused the police to come to Son's home. The police only remained for a few minutes. They questioned Son about what Son had been doing that morning, and then they left. Later that afternoon, Respondent started banging on her ceiling.

On September 27, 2014, at 5:30 am Son was woken up by Respondent's very loud banging which continue for more then ten minutes. Son called the police who arrived within fifteen minutes. Son told the police what was happening and how scared she was and asked the police to speak to Respondent and have Respondent stop banging.

Since August 2013, Respondent has verbally assaulted Son on numerous occasions.

Respondents constant harassment of Son deeply impacted her. Son was unable to sleep well because she was always scared that Respondent would start banging. Son avoided spending time in her apartment and each time Son left or entering the building she was afraid of running into Respondent. Son was afraid that Respondent would harm her.

Respondent's behavior prevented Son from entertaining in her apartment.

In October 2014, Son decided she could no longer tolerate Respondent's harassment and would move. Son stopped using her apartment on October 21, 2014, and moved out in November 2014. Son sublet an apartment from a friend starting October 21, 2014. Son explained to Petitioner that she could not longer live in her apartment and would be breaking her lease.

The last date Son was in apartment 5C was on November 15, 2014, and that was to move her belongings. Son has not been back to apartment 5C since that date.

The court found Son to be an extremely credible witness.

The next witness to testify for Petitioner was Jeffrey Piccolomini (JP). JP is currently [*8]employed by Heller Realty as an assistant to Brucato. Since August 2013 Respondent has repeatedly called JP often leaving hostile and threatening messages. Generally, the messages were unrelated to any repair request and did not warrant immediate attention.

Recordings of some fifty messages, primarily from 2014, were admitted into evidence. Many of the messages concerned Respondent's obsession with sound waves which she believed were coming from Apartment 5C and were injuring her. On October 22, 2014 at 4:12 pm, Respondent left JP a message regarding Son stating "There is going to be war here ..... People don't lie to me and get away with it .... She hurt me Im going to hurt her back." Approximately twenty minutes later, Respondent left another message stating that Son would not stop until Son was dead.

Other calls recorded include Respondent complaining of the military's use of microwaves which Respondent claimed were hurting the kids or babies she claimed to have in the Subject Premises. In several of the messages Respondent acknowledged banging on the door to Apartment 5C . Months after Son had moved out, Respondent continued to leave messages complaining that 5C was not vacant and she was still being attacked by the microwaves. In several; messages in January 2015 Respondent complained of being assaulted by "a Chinese man". In other messages Respondent threatened that she would have Garcia imprisoned.

On September 12, 2014, Respondent left a message about the sound wave machine in apartment 5C and the Super and his wife. Respondent stated if "it" continued it would not be "pretty" stating "I know what I have to do and I know who will do it for me." On October 8, 2014, Respondent left a message stating that if the sound waves did not stop "All hell is going to break out (Ex 4)."

Respondent testified on her own behalf. Respondent is 79 years old and has lived in the Subject Premises for 62 years. Respondent's parents were originally the tenants of record, and approximately 25 years ago Respondent succeeded to their tenancy after their death. Respondent lives alone.

Ironically, Respondent although her primary complaint about the occupants in 5C was noise or soundwaves, that she can not hear. Respondent testified that she used to have a hearing aid, but lost it and never had it replaced. Respondent stated she does not know why she is hearing impaired, and has not had time to be seen by a doctor for her inability to hear.

Respondent testified that she has had DEP officials in the Subject Premises on several occasions to investigate the noise that is disturbing her. Respondent does not know what kind of noise it is. Respondent has had a problem with the soundwaves since August 2011, she hears them all day and all night long.

After the video was played of the November 22, 2014 incident, Respondent did acknowledge going to the door of 5C on said date and damaging the door with a metal object, which she claimed was an umbrella. Respondent stated she was sorry for the incident, but was unable to control her behavior because of the devastating sound waves clogging her ears.

Respondent's testimony lacked credibility and can not be considered reliable in any way. Respondent's testimony on direct examination was often completely unresponsive to the questions being posed to her by her attorney. Respondent's testimony can not be given any weight by the court. The only conclusion the court can draw from Respondent's testimony is that she did engage in the conduct alleged, and that its likely that her behavior is the result of some type of mental illness, but this was neither argued by Respondent as the explanation for her conduct, nor is it a defense where conduct constitutes a nuisance (301 E 69th St. Assocs v Eskin [*9]156 Misc 2d 122).

It is clear that Respondent repeatedly and substantially violated the August 2013 Stipulation based on the credible evidence presented at the hearing by Petitioner's witnesses. Respondent literally drove Son and Youngbin from their home, nearly drove the Super to quit, and seems incapable of peaceful coexistence in the Subject Building. This behavior constitutes a nuisance [Pinehurst Const. Corp v Schlesigner 12 Misc 3d 26 affd 38 AD3d 474 (1st Dept, 2007)].

While it is sad that Respondent is elderly and has lived in the Subject Premises for decades, Respondent has been given multiple opportunities to stop her conduct, seek counseling, and keep her home, but Respondent has failed to get treatment and has persisted in her behavior unabated since 2011. Respondent was given years to cease her conduct but has failed to cure the nuisance her conduct creates. Under these circumstances Respondent is not entitled to a further stay on the warrant of eviction [Whitehall Realty Co. v Friedman 5 Misc 3d 126(A)].

Neither the Super nor other tenants should have to leave with the fear that Respondent's mental instability could escalate from continuous harassment to actual injury, or as threatened death.

In addition to the harassment visited on the Super, managing agents and Son, Respondent's consistent practice of making frivolous 911 calls, both to NYPD and NYFD, puts the entire community and neighborhood at risk, as first responders are being called to spend time at the Subject Premises for no reason and being taken away from other true emergencies.

Respondent may no longer be capable of independent living, and has resisted any help from APS or other organizations to date.

Notwithstanding her age and long term tenancy, Petitioner has established a substantial breach of the second probationary stipulation in this proceeding pending since 2012.

Based on the foregoing the stay on execution of the warrant is vacated and Petitioner may execute the warrant on April 30, 2015 on Marshal's notice, notice to the GAL and APS notification.

This constitutes the decision and order of the Court.