New York's Cooperative and Condominium Community

Habitat Magazine October 2020 free digital issue

HABITAT

LEGAL/FINANCIAL

HOW LEGAL/FINANCIAL PROBLEMS ARE SOLVED BY NYC CO-OPS AND CONDOS

Court Declines to Shut Down Illegal Parties During the Pandemic

Victor M. Metsch in Legal/Financial on September 10, 2020

Williamsburg, Brooklyn

COVID-19, large gatherings, Executive Order, co-op and condo boards, injunction.
Sept. 10, 2020

Most of the litigation triggered by the coronavirus pandemic so far has involved business disputes – over the terms of commercial leases, for instance, or over claims for business-interruption coverage that were denied by insurance carriers. But a recent decision in state Supreme Court in Brooklyn could be the harbinger of a coming wave of COVID-inspired lawsuits in residential properties, including co-ops and condominiums.

In a residential building at 100 S. 4th St. in Brooklyn, the owner claimed a resident was a “long-term disrupter” who hosted numerous large gatherings in his apartment, endangering the lives of other residents and brazenly flouting Gov. Andrew Cuomo’s “New York State on Pause” Executive Order that went into effect March 22. That order stated: “Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time.”

The complaint charged the tenant with breaching his lease and violating the house rules by engaging in “objectionable conduct” that included hosting parties that often started after 10 p.m. and ran till 8 a.m. The gatherings allegedly involved loud music and resulted in fights in the hallways.

The tenant’s attorney denied that his client had hosted large parties and asserted that the landlord had failed to maintain orderly premises. The attorney blamed the problem on another tenant who terrorized tenants in the building and had been arrested several times after calls to the police.

After complaints from other tenants and numerous police visits, the owner went to court seeking a preliminary injunction restraining the first tenant from violating the Executive Order. To be entitled to a preliminary injunction, the party asking for relief must establish, among other things, that the case is likely to succeed on its merits and that he or she would suffer irreparable injury if the relief is not granted.

The court ruled that the landlord failed to make the requisite showing of a likelihood of success on the merits because it was unclear which tenant was actually causing any disturbance. The landlord also failed to allege damages of a noneconomic nature and, thus, failed to demonstrate irreparable harm in the absence of a preliminary injunction. (Irreparable harm means any injury for which money damages are insufficient.) And finally, the court could not say that the alleged injury was more burdensome to the landlord than the harm an injunction would cause to the tenant. As such, the owner failed to meet the required elements, and the preliminary injunction was denied. The parties were free to go on – until the next challenge.

The lesson here is clear: establishing that the spirit of the law has been violated is not enough in a court of law; it’s necessary to prove that the letter of the law has also been breached. Curiously, the court did note that all people in New York City should be following social distancing guidelines and other current orders issued by the city and state. This case, in all likelihood, is just the beginning of COVID-inspired lawsuits in residential properties. It’s also a sign that simply attaching a COVID tag to a legal claim might not lead to a victory in court.

Victor M. Metsch is of counsel at the law firm Smith, Gambrell & Russell.

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