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You Can Complain

May an owner of a co-op apartment successfully sue her neighbor based on complaints the neighbor made about noise coming from the plaintiff’s apartment, even though the plaintiff claimed the complaints were untrue? That was the issue in Oxman v. 1100 Park Avenue Cooperative Corp.

Plaintiff Ellen Oxman owns an apartment in the co-op apartment building located at 1100 Park Avenue, New York. She sued the cooperative corporation; its managing agent Wallack Management Company, Wallack’s principal Burton Wallack; Wallack’s employee, John Kilgore; and the resident superintendent William Mooney. Oxman also sued her downstairs neighbor, Peggy Ogden.

The court discussed Oxman’s claims as set forth in the complaint. Oxman alleged that Ogden made complaints regarding noise from Oxman’s apartment that were untrue and, as a result of Ogden’s complaints, the co-op sent Oxman a threatening letter as well as a notice to terminate her lease. Oxman also alleged that Mooney, Wallack, Wallack Management, and the co-op made improper demands that Oxman allow them into the apartment to make “non-existent” repairs to the apartment.

Ogden made a motion to dismiss the action against her before she served an answer, on the theory that Oxman had not pleaded a viable cause of action. The court discussed the standard to be employed when considering a motion to dismiss. The sole criteria was whether the complaint stated a cause of action recognizable at law. The facts alleged were required to be accepted by the court as true and the complaint was to be afforded every favorable inference.

Ogden argued that the pleadings did not amount to any recognizable causes of action. She argued that harassment was not recognized as a claim in New York, and that Oxman failed to allege any nexus between Ogden’s noise complaints and the other defendants’ requests for access to the apartment.

Oxman also asserted a cause of action against Ogden for intentional infliction of emotional distress. Ogden claimed that, even if Oxman’s allegations were true, it did not support a claim for infliction of emotional distress because the incidents were “relatively tame and unremarkable.”

Oxman also asserted prima facie tort – that Ogden committed an act which was otherwise lawful but which was performed with the sole intent to injure. Ogden argued that this claim should have been dismissed because “special damages” were required and none were pleaded.

The court first looked to the harassment claim and determined that the cause of action was required to be dismissed because New York did not recognize the claim. Thus, even if Oxman’s charges were true, it was not relevant because no claim existed.

The court could not identify Oxman’s next legal theory but believed it to be a claim for invasion of privacy or private nuisance. The court determined that Oxman did not set forth the allegations of invasion of privacy. As to private nuisance, the court explained that the elements of the cause of action were: an interference that was (1) substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) caused by defendant’s conduct; and (5) interfered with plaintiff’s right to use and enjoy land. The court noted that it was Oxman’s burden to establish the elements and that she failed to do so. Indeed, she had not stated with any particularity what Ogden did which interfered with the use of her apartment or why it was unreasonable. The court dismissed this claim.

Oxman also sought damages for intentional infliction of emotional distress. The elements of emotional distress were (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress or disregard which causes such distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. The court discussed case law on this point and determined that extreme and outrageous conduct is measured by the reasonable bounds of decency tolerated by decent society.

This standard was designed to filter out trivial complaints and assure that a claim of emotional distress is genuine. It was for the court to determine whether conduct was outrageous. The type of conduct which was considered by the courts to be outrageous was typically deliberate, longstanding, and/or a malicious campaign of harassment or intimidation.

Oxman contended that Ogden and the other defendants engaged in intentional and improper conduct. The court said, however, that even if the court accepted Oxman’s claims as true, they did not meet the rigorous level of being extreme and outrageous, even if viewed cumulatively.

In addition, the court determined that Oxman did not meet the second element by alleging that Ogden’s noise complaints were made intentionally to cause severe emotional harm to Oxman. Also, Oxman could not show a causal connection between Ogden’s acts and Oxman’s claimed injury or that Ogden worked in concert with any of the other defendants to wage a campaign of intentionally inflicted distress on Oxman. Finally, Oxman did not identify the extreme emotional distress that she claimed. She merely stated that she “suffered emotional distress and anxiety.”

As to Oxman’s claims for prima facie tort, she would have had to have shown (1) the intentional infliction of harm; (2) which resulted in special damages; (3) without any excuse or justification; (4) by an act or series of acts which would have otherwise been lawful. Oxman had to allege that the conduct consisted of an otherwise lawful act which was performed with the intent to injure or with “disinterested malevolence.”

Oxman suggested some elements of prima facie tort in her answering affidavit. However, Oxman did not claim that Ogden’s sole motivation was due to her disinterested malevolence and Oxman did not provide any factual support for her claims.

The court dismissed the complaint as against Ogden. The other defendants answered and did not make a motion so the claims against them will be litigated.

Comment: In this case, the court reviewed the causes of action claimed by Oxman and determined that they could not be sustained against her fellow shareholder, who complained about excessive noise coming from Oxman’s apartment. The court did not discuss whether the claims made by Ogden were true or whether the co-op board determined that Oxman was in fact making excessive noise. We suspect the court did not have to consider these issues in order to decide this motion.

This case demonstrates that a shareholder will be protected if they complain about the actions of another shareholder, absent specific allegations of outrageous or extreme conduct. We found interesting, however, that Oxman apparently did not sue Ogden for defamation, i.e. for knowingly making an untrue statement which caused injury to Ogden. We do not know if such a claim would have been sustained, at least at the very early stages of the litigation.

In addition, because the co-op and the managing agent did not move to dismiss, the case will continue to be prosecuted against them, although we cannot determine from this decision what “damages” Oxman claims she suffered as a result of their actions.


For Plaintiffs: Alter & Alter
For Defendants: Francis J. Harvey Jr., Tannenbaum Helpern Syracuse & Hirschtritt



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