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Unreasonable Conduct

40 WESt 67th STREET VS. PULLMAN

A character in E.B. White’s children’s classic Charlotte’s Web asks: “Where’s papa going with that ax?” We have a similar story, but we could rephrase it: “Where’s that lady going with that broomstick?”

My firm represents a cooperative apartment corporation where the proprietary lease and house rules prohibit excessive noise and unreasonable conduct that disturb the residents. Those rules were broken when an elderly shareholder – during different hours of the day and night – took a broomstick and banged on the walls in her apartment, then banged on the hallway walls, rang the doorbells of other residents, yelled and screamed at neighbors, and placed a boombox in the hallway playing loud music. The police were summoned several times.

My firm and the managing agent both wrote to the shareholder and then to her attorney to get her to stop. This shareholder was a very nice person – except when she had these episodes of crazy behavior.

Over the course of five years, the board issued three “notices to cure” – legal requests to stop this action. Each of those notices detailed at least 50 different instances of her strange conduct. In fact, this shareholder yelled at another shareholder that she hoped she would have a heart attack and die. I read their documents and suggested to the board that a special meeting be called to consider whether or not this kind of conduct made her tenancy undesirable.

This procedure was sanctioned by New York’s highest court in a case called 40 West 67th Street vs. Pullman. That court basically said that it would defer to the board or the cooperative’s business judgment when it came to sanctioning or evicting tenant-shareholders for what was deemed “unreasonable conduct.”

The board did call such a special meeting and, in accordance with the Pullman ruling, it invited the shareholder and the shareholder’s attorney to come and participate, which they did. The board heard about two hours of statements from the managing agent and from various shareholders about this woman’s behavior. The meeting was videotaped by a professional videographer, and the videotape showed the shareholder repeatedly interrupting the other speakers and the managing agent, yelling at them, and calling them liars. The shareholder denied hundreds of allegations and claimed that the board was ganging up on her, that other residents were controlling the heat within her apartment, and that other people were causing noises inside her apartment – all claims that could not be substantiated. After hearing this, the board voted to terminate her proprietary lease.

One interesting thing is that one of the board members recused herself from the deliberations and the voting because she wanted to be a witness. She was the one whom the tenant-shareholder hoped would have a heart attack and die. So ultimately the board brought an eviction proceeding. We were fortunate to end up with a judge who was knowledgeable about the Pullman case, and the court ordered the shareholder’s eviction.

There were some hiccups along the way. First of all, when you issue a notice to terminate, you’re not allowed to accept rent or maintenance payments from the date of the termination to the date when you begin an eviction proceeding. Even though the managing agent was told this three times, he kept accepting maintenance. Consequently, the board had to issue four notices to terminate. Finally, on the fourth notice, the board was allowed to proceed with the eviction case.

This was important because it delayed the case by about nine months. The judge granted some of the co-op board’s attorney’s fees, but he said, “I’m not granting you attorney’s fees from all those times you accepted maintenance because it was your negligence in doing it.” Other than that, he granted all the other attorney’s fees and disbursements.

The Pullman ruling is a very potent weapon when you’re dealing with what is probably the most difficult issue for boards – quality-oflife concerns. The proprietary lease that I dealt with in this case said it was the board that would decide the matter. But in many leases, it is the other shareholders who have to decide. So you have to be very careful in following the letter of your governing documents and the dictates of Pullman

Lewis Montana is a senior partner at Levine & Montana.

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