Court Decides Whether Owner States Legally Cognizable Claims Against Neighbor
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, Tropoj Mrishaj, and their two children moved into the apartment at the beginning of November 2021. Faith Elise Moore lived in apartment D1K, directly below the Mrishaj family.
The Mrishaj’ alleged that every day, from November 5, 2021, to March 25, 2022, Moore constantly screamed profanities at them and repeatedly struck her ceiling with a broom or similar hard object. They alleged that Moore’s conduct adversely affected their sleep and health and the development of the children, particularly child E.M., who ran screaming to her parents from the noise.
Moore also allegedly had a personal relationship with the president of the cooperative’s board of directors, which she leveraged to convince the cooperative to issue a notice of termination to the Mrishaj family on March 2, 2022. They subsequently vacated their apartment March 25, 2022. On June 22, 2022, Moore claimed to Ervin Mrishaj’s parents, who also resided in the same building, that she had evicted Ervin, Tropoj and their children.
Litigation by the Mrishaj’s ensued. Moore moved to dismiss each of their claims: (1) unlawful eviction, (2) nuisance and harassment, (3) personal injury, (4) intentional infliction of emotional distress, (5) damage to the Mrishaj’s leasehold, and (6) tortious interference with a contract or business relations.
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 eviction as an alternative to forcible evictions 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.
The complaint alleged that Moore’s repeated banging on her ceiling below the Mrishaj’ apartment and her screaming of profanities, frightening the children and interrupting their sleep, caused them to leave their apartment after several months. They did not allege that Moore deprived them of access to their apartment. They still owned and were allowed to use their apartment. Instead, the Mrishaj decided to leave their apartment because Moore caused the conditions to become intolerable, akin to a constructive eviction, which did not qualify as a violation of RPAPL 853. Moreover, like constructive eviction, an eviction in violation of RPAPL 853 applies to lessor-lessee disputes. Section 853 was designed to safeguard the rights of lessees against their lessors, not against neighboring lessees. No authority disclosed the statute’s application outside a lessor-lessee dispute.
In opposition to Moore’s motion, Mrishaj emphasized their allegation that on June 22, 2022, Moore admitted to evicting them, but again they did not allege that Moore 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 did not require that Moore forcibly removed them or their personal property or forcibly changed their apartment door lock, the statute at minimum required unlawful conduct. Moore’s mere claim that she evicted the Mrishaj family was not unlawful. Therefore, absent allegations of a physical, unlawful removal, they failed to state a claim for unlawful eviction.
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.
The Mrishaj’ allegations show that Moore engaged in continuous and recurring conduct that interfered with their sleep and enjoyment of their apartment. Therefore the court denied Moore’s motion to dismiss the nuisance claim. The court dismissed the Mrishaj’ claim for harassment, however, because New York does not recognize a common-law cause of action for harassment.
The Mrishaj’ vaguely alleged a claim for “personal injury” without further specification. They insisted at oral argument, however, that their allegations supported claims for both assault and a prima facie tort. To establish assault, a plaintiff must show physical conduct causing their apprehension of immediate harmful contact. Yet the verified complaint and the Mrishaj’ affidavits, at best, describe only their apprehension of Moore’s disturbing loud noise and profanities. But the Mrishaj’ nowhere described any threat of immediate physical harm: that Moore was about to strike through the ceiling or through the’ door into their apartment or attack them elsewhere in the building.
To establish a prima facie tort, a plaintiff 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. Although the Mrishaj’ alleged that they lost their apartment, they do not specify that they sold it for less than their investment in it or that they could not find a comparable apartment for the same price. Even if loss of the apartment constituted special damages, their allegations about Moore’s conduct, particularly her admission that she effected their eviction, demonstrated that she acted out of a motive to evict them, rather than pure disinterested malevolence. And the prima facie tort claim duplicated the claim for intentional infliction of emotional distress. Therefore the court granted Moore’s motion to dismiss the Mrishaj’ claim for “personal injury,” regardless whether it suggested a claim for assault or a prima facie tort.
A claim for intentional infliction of emotional distress requires plaintiffs to demonstrate (1) that defendant engaged 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. In particular, plaintiffs must show that defendant’s conduct was beyond all possible bounds of decency and utterly intolerable in a civilized community.
Mrishaj alleged that Moore intentionally harassed them from within her apartment by constantly shouting profanities and loudly striking her ceiling, which disrupted their sleep and adversely affected their health, for over four months, with the objective of evicting them. They allege that Moore 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 attested that, when Mooret banged on her ceiling and shouted at them, 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.
In support of the motion, Mrishaj presented text messages indicating an amicable relationship between the neighbors. Even assuming that Moore offered this unsworn hearsay to show the Mrishaj family’s state of mind and not impermissibly for the truth of the messages, they did not constitute documentary evidence that supported Moore’s motion. They do not completely refute Mrishaj’ allegations, since they do not encompass every interaction between the parties from November 5, 2021, to March 25, 2022. As Ervin Mrishaj explained, the text messages predated their move into their apartment or reflected his diplomatic efforts early in their tenancy to appease Moore and diffuse the tension. Therefore the court denied Moore’s motion to dismiss the Mrishaj’s claim for intentional infliction of emotional distress.
The Court considers the Mrishaj family’s claim for damage to their leasehold abandoned, as they did not oppose Moore’s motion to dismiss this claim. Moreover, that claim merely reiterated that Moore’ss conduct impaired use of their apartment, which duplicated their private nuisance claim. Therefore, the Court granted Moore’s motion to dismiss the claim for damage to their leasehold.
The Mrishaj’ final claim alleges that Moore caused the cooperative to issue a notice of termination to them, but they admitted that the cooperative did not actually evict them. Thus. They failed to substantiate how they were injured as a result of Moore’s alleged interference with their contract or other relationship with the cooperative.