Supreme Court, New York County, June 12, 2023

Munzer & Saunders, LLP, New York City (Craig Saunders of counsel), for defendant.

Michael Stepper, New York City, for plaintiffs.

Defendant moves pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint by two parents, suing on their own and their children's behalf.

I. Plaintiffs' Factual Allegations

Plaintiff Ervin Mrishaj purchased a proprietary lease for apartment D2K at 920 Pelhamdale Avenue, Pelham, New York, from nonparty cooperative Caroline Gardens Apartment Corporation October 5, 2021. He, his wife, plaintiff Tropoj Mrishaj, and their two children moved into the apartment at the beginning{**81 Misc 3d at 994} of November 2021. Defendant resided in apartment D1K, directly below plaintiffs.

Plaintiffs allege that every day, from November 5, 2021, to March 25, 2022, defendant constantly screamed profanities at plaintiffs and repeatedly struck her ceiling with a broom or similar hard object. They allege that defendant's conduct adversely affected plaintiffs' sleep and health and the development of the children, particularly plaintiffs' child E.M., who ran screaming to her parents from the noise.

Defendant also had a personal relationship with the president of the cooperative's board of directors, which defendant leveraged to convince the cooperative to issue a notice of termination to plaintiffs March 2, 2022. Plaintiffs subsequently vacated their apartment March 25, 2022. On June 22, 2022, defendant claimed to Ervin Mrishaj's parents, who also resided in the same building, that she had evicted plaintiffs.

II. Applicable Standards

Upon a motion to dismiss the complaint, the court considers the complaint's factual allegations as true. (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 239 [2021]; Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 175 [2021]; Yovich v Montefiore Nyack Hosp., 212 AD3d 425, 426 [1st Dept 2023].) In a motion pursuant to CPLR 3211 (a) (7), defendant bears the burden to establish that the complaint "fails to state a viable cause of action." (Connolly v Long Is. Power Auth., [*2]30 NY3d 719, 728 [2018].) Dismissal is warranted if the complaint fails to allege facts that "fit within any cognizable legal theory." (Sassi v Mobile Life Support Servs., Inc., 37 NY3d at 239.)

A motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1) will succeed only if admissible documentary evidence completely refutes plaintiffs' factual allegations, resolving all factual issues as a matter of law. (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d at 175; Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572, 601 [2017]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019].) The court may not consider defendant's affidavit denying her conduct. (Serao v Bench-Serao, 149 AD3d 645, 646 [1st Dept 2017]; Calpo-Rivera v Siroka, 144 AD3d 568, 568 [1st Dept 2016]; Asmar v 20th & Seventh Assoc., LLC, 125 AD3d 563, 564 [1st{**81 Misc 3d at 995}Dept 2015]; City of New York v VJHC Dev. Corp., 125 AD3d 425, 426 [1st Dept 2015].)

Defendant moves to dismiss each of plaintiffs' claims: (1) unlawful eviction, (2) nuisance and harassment, (3) personal injury, (4) intentional infliction of emotional distress, (5) damage to Ervin Mrishaj's leasehold, and (6) tortious interference with a contract or business relations. (CPLR 3211 [a] [1], [7].) The court grants defendant's motion in part as follows.

III. Plaintiffs' Unlawful Eviction Claim

New York Real Property Actions and Proceedings Law § 853 provides a cause of action for unlawful eviction, which allows plaintiffs to recover treble damages, if defendant forcibly or unlawfully disseized, ejected, or removed plaintiffs from real property. Although the removal need not be forcible, the amendment adding unlawful as an alternative to forcible means was intended to remedy a lessor's other, non-forcible, but physical impediments to lessees' possession of real property, such as changing the door locks or removing the lessees' personal property when the lessees are away from the premises. (Hood v Koziej, 140 AD3d 563, 565 [1st Dept 2016]; Mayes v UVI Holdings, 280 AD2d 153, 160 [1st Dept 2001].)

The complaint alleges that defendant's repeated banging on her ceiling below plaintiffs' apartment and her screaming of profanities, frightening the children and interrupting plaintiffs' sleep, caused plaintiffs to leave their apartment after several months. Plaintiffs do not allege that defendant deprived them of access to their apartment. (Weiss v Bretton Woods Condominium II, 203 AD3d 1100, 1102 [2d Dept 2022].) They still owned and were allowed to use their apartment. Instead, plaintiffs decided to leave their apartment because defendant caused the conditions to become intolerable, akin to a constructive eviction, which does not qualify as a violation of RPAPL 853. Moreover, like constructive eviction, an eviction in violation of RPAPL 853 applies to lessor-lessee disputes. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82 [1970]; 7001 E. 71st St., LLC v Millennium Health Servs., 138 AD3d 573, 573 [1st Dept 2016]; Schwartz v Hotel Carlyle Owners Corp., 132 AD3d 541, 542 [1st Dept 2015]; Pacific Coast Silks, LLC v 247 Realty, LLC, 76 AD3d 167, 172 [1st Dept 2010].) Section 853 is designed to safeguard the rights of lessees against their lessors, not against neighboring lessees. No authority discloses the statute's application outside a lessor-lessee dispute.{**81 Misc 3d at 996}

[1] In opposition to defendant's motion, plaintiffs emphasize their allegation that on June 22, 2022, defendant admitted to evicting them, but again plaintiffs do not allege that defendant [*3]actually removed them or their personal property from their apartment or otherwise deprived them of their ownership or possession of their apartment. Although RPAPL 853 does not require that defendant forcibly removed them or their personal property or forcibly changed their apartment door lock, the statute at minimum requires unlawful conduct. (Hood v Koziej, 140 AD3d at 566; Rocke v 1041 Bushwick Ave. Assoc., 169 AD2d 525, 525 [1st Dept 1991].) Her mere claim that she evicted plaintiffs was not unlawful. Therefore, absent allegations of a physical, unlawful removal, plaintiffs fail to state a claim for unlawful eviction.

IV. Nuisance and Harassment

A private nuisance claim requires factual allegations that defendant's action or omission substantially, intentionally, and unreasonably interfered with plaintiffs' right to use and enjoy real property. (Domen Holding Co. v Aranovich, 1 NY3d 117, 123 [2003]; Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977]; O'Hara v Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 AD3d 476, 477 [1st Dept 2022].) Defendant's objectionable conduct must be continuous or recurring. (Domen Holding Co. v Aranovich, 1 NY3d at 123; Berenger v 261 W. LLC, 93 AD3d 175, 182 [1st Dept 2012]; Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38, 41 [1st Dept 2011].)

Plaintiffs' allegations show that defendant engaged in continuous and recurring conduct that interfered with their sleep and enjoyment of their apartment. Therefore the court denies defendant's motion to dismiss plaintiffs' nuisance claim. (O'Hara v Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 AD3d at 477.) The court dismisses plaintiffs' claim for harassment, however, as "New York does not recognize a common-law cause of action for harassment." (Garza v Nunz Realty, LLC, 187 AD3d 467, 467 [1st Dept 2020], quoting Edelstein v Farber, 27 AD3d 202, 202 [1st Dept 2006].)

V. Personal Injury

Plaintiffs vaguely allege a claim for "personal injury" without further specification. Plaintiffs insisted at oral argument, however, that their allegations support claims for both assault and a prima facie tort. To establish assault, plaintiffs must show physical conduct causing their apprehension of immediate{**81 Misc 3d at 997} harmful contact. (Waterbury v New York City Ballet, Inc., 205 AD3d 154, 166 [1st Dept 2022]; Corcoran v City of New York, 186 AD3d 1151, 1151 [1st Dept 2020].) Yet the verified complaint and plaintiffs' affidavits, at best, describe only their apprehension of defendant's disturbing loud noise and profanities. Plaintiffs nowhere describe any threat of immediate physical harm: that defendant was about to strike through the ceiling or through plaintiffs' door into their apartment or attack plaintiffs elsewhere in the building, for example. (Waterbury v New York City Ballet, Inc., 205 AD3d at 166; Corcoran v City of New York, 186 AD3d at 1151; Joon Song v MHM Sponsors Co., 176 AD3d 572, 573 [1st Dept 2019].)

To establish a prima facie tort, plaintiffs must show (1) intentional infliction of harm, (2) causing special damages, in the form of a specific, measurable loss, (3) without justification or excuse, (4) by otherwise lawful acts. (Posner v Lewis, 18 NY3d 566, 570 n 1 [2012]; Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]; Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 332 [1983].) Although plaintiffs allege that they lost their apartment, they do not specify that they sold it for less than [*4]their investment in it or that they could not find a comparable apartment for the same price. (Lewis v Pierce Bainbridge Beck Price Hecht LLP, 195 AD3d 518, 519 [1st Dept 2021]; Hakim v James, 169 AD3d 450, 452 [1st Dept 2019]; Britt v City of New York, 151 AD3d 606, 607 [1st Dept 2017]; Wigdor v SoulCycle, LLC, 139 AD3d 613, 614 [1st Dept 2016].) Even if plaintiffs' loss of their apartment constitutes special damages, however, their allegations about defendant's conduct, particularly her admission that she effected plaintiffs' eviction, demonstrate that she acted out of a motive to evict plaintiffs, rather than pure disinterested malevolence. (Hakim v James, 169 AD3d at 452; Britt v City of New York, 151 AD3d at 607; AREP Fifty-Seventh, LLC v PMGP Assoc., L.P., 115 AD3d 402, 403 [1st Dept 2014].) Last, plaintiffs' prima facie tort claim duplicates their claim for intentional infliction of emotional distress. (Maak v Medina Professional Firefighters Assn., IAFF Local 2161, 186 AD3d 1016, 1017 [4th Dept 2020].) Therefore the court grants defendant's motion to dismiss plaintiffs' claim for "personal injury," regardless whether it suggests a claim for assault or a prima facie tort.

VI. Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress requires plaintiffs to demonstrate (1) that defendant engaged{**81 Misc 3d at 998} in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that such conduct would cause severe emotional distress, (3) a causal connection between defendant's acts and plaintiffs' injury, and (4) severe emotional distress. (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Silverman v Park Towers Tenants Corp., 206 AD3d 417, 418 [1st Dept 2022]; Waterbury v New York City Ballet, Inc., 205 AD3d at 165.) In particular, plaintiffs must show that defendant's conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community." (Chanko v American Broadcasting Cos. Inc., 27 NY3d at 56; Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 23 [2008].)

[2] Plaintiffs allege that defendant intentionally harassed them from within her apartment by constantly shouting profanities and loudly striking her ceiling, which disrupted plaintiffs' sleep and adversely affected their health, for over four months, with the objective of evicting them. They allege that defendant yelled the profanities despite her knowledge of the young children residing in the apartment and that her conduct traumatized at least one child. Tropoj Mrishaj attests that, when defendant banged on her ceiling and shouted at plaintiffs, their child ran to her mother screaming and crying and suffered long-term effects from these repeated episodes. She refused to sleep or play alone. At night she frequently woke up terrified by nightmares. Every day she threw tantrums. She became too distracted to focus and learn and changed from happy and friendly to angry and distant. Assuming these allegations to be true, they describe a campaign of indecent, intolerable, and uncivilized conduct intended to be offensive and causing severe mental and physical harm to at least one child that satisfies the high bar of an intentional infliction of emotional distress claim. (Silverman v Park Towers Tenants Corp., 206 AD3d at 418; Waterbury v New York City Ballet, Inc., 205 AD3d at 165.)

In support of the motion, defendant presents text messages indicating an amicable relationship between plaintiffs and defendant. Even assuming that defendant offers this unsworn hearsay to show plaintiffs' state of mind and not impermissibly for the truth of the messages, they do not constitute "documentary evidence" that may support defendant's motion. (CPLR [*5]3211 [a] [1]; Kalaj v 21 Fountain Place, LLC, 169 AD3d 657, 658 [2d Dept 2019].) They do not completely refute plaintiffs'{**81 Misc 3d at 999} allegations, since they do not encompass every interaction between the parties from November 5, 2021, to March 25, 2022. (Rosario v Hallen Constr. Co., Inc., 214 AD3d 544, 544 [1st Dept 2023]; Whitestone Constr. Corp. v F.J. Sciame Constr. Co. Inc., 194 AD3d 532, 534 [1st Dept 2021].) As Ervin Mrishaj explains, the text messages predated plaintiffs' move into their apartment or reflect his diplomatic efforts early in their tenancy to appease defendant and diffuse the tension. Therefore the court denies defendant's motion to dismiss plaintiffs' claim for intentional infliction of emotional distress.

VII. Damage to the Leasehold

The court considers plaintiffs' claim for damage to their leasehold abandoned, as they did not oppose defendant's motion to dismiss this claim. (Disla v Biggs, 191 AD3d 501, 501 [1st Dept 2021]; Burgos v Premiere Props., Inc., 145 AD3d 506, 508 [1st Dept 2016].) Moreover, this claim merely reiterates that defendant's conduct impaired use of their apartment, which duplicates their private nuisance claim. Therefore the court grants defendant's motion to dismiss plaintiffs' claim for damage to their leasehold.

VIII. Tortious Interference with a Contract or Business Relations

Plaintiffs' final claim alleges that defendant caused the cooperative to issue a notice of termination to plaintiffs, but they admit that the cooperative did not actually evict them. Thus plaintiffs fail to substantiate how they were injured as a result of defendant's alleged interference with plaintiffs' contract or other relationship with the cooperative (Joon Song v MHM Sponsors Co., 176 AD3d at 572), which warrants dismissal of this claim as well.

IX. Conclusion

Finally, plaintiffs claim disclosure will defeat dismissal of claims that currently fail. (CPLR 3211 [d].) The evidence plaintiffs expect to present, however, is not from defendant, but is from plaintiffs' own experts, which plaintiffs were free to present now in opposition to dismissal. Nor do plaintiffs suggest what claims plaintiffs' experts would support other than intentional infliction of emotional distress, which already survives.

Consequently, for the reasons explained above, the court grants defendant's motion to dismiss plaintiffs' claims except their claims for private nuisance and intentional infliction of{**81 Misc 3d at 1000} emotional distress. (CPLR 3211 [a] [1], [7].) Defendant shall answer the remaining claims in the complaint within 10 days after service of this order with notice of entry. (CPLR 3211 [f].)