Richard Siegler in Co-op/Condo Buyers
In Zipper vs. Haroldon Court Condominium, Sheila Zipper, the owner of a condominium unit in the 13-story, 93-unit apartment house at 215 West 90th Street, at Broadway (above), sought to evict her tenant, Rebecca Rosenbaum, also known as Rebecca Lukowsky,on the grounds that Rosenbaum had created a nuisance by keeping the apartment in such poor and garbage-strewn condition that it created a stench and other nuisances. Yet even despite eyewitness corroboration from disinterested third parties — New York City firefighters, at that — New York County Supreme Court Justice Rolando T. Acosta, after a non-jury trial, dismissed Zipper's claim and even granted Rosenbaum's motion for attorneys' fees. Zipper, represented by Lipsig Price, was forced to appeal the decision, winning vindication in an April 17, 2007, decision by the appellate court.
Acosta had determined that Rosenbaum did not create a nuisance warranting her eviction. The appellate division said that appeared to have been based upon an unreasonable and unsupportable finding that odors from the apartment of were only occasional and of the type that are unavoidable in close city quarters, an "inescapable reality of urban life."
To the contrary, said the higher court, all credible testimony regarding those odors indicated that they were not of the unavoidable variety but of a type caused by matter that should not be kept in an apartment, such as rotting food. The testimony of Rosenbaum's witnesses, who denied the presence of any such odors, was refuted by the disinterested testimony of two firefighters regarding their unannounced visit to the apartment just one month before trial. Their testimony corroborated Zipper's claims of ongoing noxious odors by confirming that on that visit the apartment emanated shockingly foul odors. Even though the stench may have dissipated somewhat once the apartment door was closed, that fact was of little consequence. Bad odors, while much worse at the source, generally continue to permeate the vicinity of their source, remaining noticeable in varying degrees.
To reject claims of recurring odor problems as it did, Acosta had had to conclude that the stench noticed by the firefighters coincidentally happened to be present that day and was a rare event. Such a conclusion strained credulity. Indeed, Acosta's rejection of the nuisance claim imposed on Zipper a burden beyond that imposed by law, and impossible to satisfy — that is, proving the ongoing occurrence of objectionable conduct. The court found that the credible testimony clearly established the claimed presence of an unacceptable level of odor constituting a nuisance and warranting eviction.
Cockroaches and Collyer Brothers
Further support came from the fire department's Lieutenant Meehan as to what he termed the "Collyer Mansion"-like condition of the apartment, which was dangerously cluttered with furnishings, boxes, and debris. Although Acosta had simply directed Rosenbaum to cure the condition, the appellate court found that in previous litigation years earlier, the court had taken extraordinary measures to help Rosenbaum cure the same condition and avoid eviction. Evidently, said the appellate court, the problem could not be solved with a court directive.
Moreover, although Zipper and the condominium board were unable, without Rosenbaum's cooperation, to clearly establish the cause of the many water leaks into the apartment below Rosenbaum's, testimony regarding prior incidents indicated that over the years, Rosenbaum had created or allowed flooding conditions to occur in her apartment. While this alone would not be enough for a finding of nuisance, it did support the other evidence. So, too, did the testimony regarding the cockroach infestation in Rosenbaum's apartment and the trash she deposited, even if it did not actually create a building-wide infestation.
The court concluded that the eviction therefore should have been granted. The award of attorney fees to Rosenbaum was rejected. Zipper's further claim, for an abatement of common charges, was properly transferred to civil court.
This is a clear case where the appellate court strongly disagreed with the conclusion of the trial court. Although lower courts are usually reversed on legal errors, the reversal here seems based in large measure on the facts: a strongly divergent view of the impact of the stench and odors, and an evaluation of the extent of the odor level that constituted a nuisance. Acosta was also reversed in part in two other cases on the same day.
Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan and a member of the Committee on Condominiums and Cooperatives of the Real Property Section of the New York State Bar Association. He is also an adjunct professor at New York Law School, where he teaches a course on cooperative and condominium law.
Adapted from Habitat September 2007. For the complete article and more, join our Archive >>
Co-op and condo board business broken down into bite-sized bits - 2 stories each week. Read now on all digital devices.
A free digital resource for co-op/condo board directors. Published twice a month. Read now on all digital devices.