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Noises Off, by Arthur Xanthos

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What is a Co-op obligated to do when one shareholder-tenant complains that another shareholder-tenant is too noisy? Consider the following: Shareholder-tenant on 4th floor sues Co-op and shareholder-tenant on 5th floor. The complaint alleges that the 5th floor tenants are unreasonably noisy, and that the Co-op has failed to resolve it. As real estate development in New York City continues to accelerate, such complaints are becoming commonplace.

Co-ops are landlords, so by law they are deemed to have warranted to tenants that the premises are habitable. An unreasonably loud building obviously can make an apartment uninhabitable. But what if the ‘noise’ complained of is caused by another shareholder-tenant? Further, what if the noise is sporadic, or difficult to record or measure objectively? Such cases pose nettlesome problems for co-ops, managing agents, and their carriers, because money damages are often not the primary goal of the plaintiff. How do you resolve a claim where the plaintiff wants peace and quiet, the defendant-tenant argues that the noise is the natural by-product of a happy, busy family life, and the Co-op cannot control the noise or the plaintiff’s reaction to it?

In our practice, we have seen or suggested several, non-orthodox settlement possibilities: (1) The Co-op can pass and enforce more stringent carpeting and padding rules; (2) Subject to cost, the Co-op can invest in soundproofing materials at the ceiling, floor, or wall interfaces; (3) The parties can explore an apartment swap, or a buyout/sale; (4) The Co-op can monitor noise (via a property manager or superintendent) and assess reasonable fines based on violations of a well-defined noise policy; and (5) If warranted and authorized under the proprietary lease, the Co-op can attempt a dispossess proceeding based on the offending tenant creating a nuisance. See, e.g., Domen v. Aranovich, 1 N.Y.3d 117 (2003). Failing resolution, a strong summary judgment motion on behalf of the Co-op is imperative, keeping in mind that as recently as a few days ago the First Department kept a Co-op in a lawsuit while dismissing the offending, noisy tenant from the case! Brown v Blennerhasset Corp., 2014 N.Y. App. Div. LEXIS 188, 1-3 (1st Dept. Jan. 14, 2014).

                                                                                                   -APX 1/17/14
Arthur Xanthos, board of directors, Brown v. Blennerhasset, co-op and condo, noise complaints, premises liability, proprietary lease, real estate, tenant, warranty of habitability

Mold Up in the Air, by Arthur Xanthos

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On January 13, 2014, the New York State Court of Appeals heard oral argument in the appeal of Cornell v. 360 W. 51st Realty, which is the latest First Department word on whether and when a claim alleging bodily injury due to mold can survive for presentment to a jury.
Cornell was decided by the First Department on March 6, 2012, and is generally regarded to have made it easier for a plaintiff’s mold claim to survive summary judgment under a Frye analysis.  (Fryerequires that for a plaintiff’s claim to survive, it must be generally accepted in the relevant scientific community that the offending agent (mold, asbestos, etc.) causes the claimed injury.)
A decision is likely months away but if the questions from the Court of Appeals bench during oral argument are any indication, Cornell stands an excellent chance of reversal or modification.
The Justices focused primarily on the difference between the word “causation”, and the term “association”.  While science recognizes many associations, it recognizes far fewer causations -- and that is the entire point of Frye.  If the relevant scientific community does not generally accept that A (e.g., mold) causes B (e.g., asthma), then plaintiff cannot prove causation and must be turned away. The Cornell plaintiff showed “association” between mold and illness; will that be enough for plaintiff’s case to survive for presentment to a jury?
About two years ago, this firm handled a Frye hearing in Supreme Court, Kings County in which the sitting Justice presciently asked the same question the Court of Appeals just did -- what is the difference between causation and association?  In other words, do scientists (doctors) use “association” to mean the same thing that a layperson means by “causation”?  This question gets at the very root of the confusion in some of the case law on whether to allow expert testimony under Frye.
Hypotheticals, some absurd, highlight the issue.  There may be a strong association between men with grey hair, and mortality; or between membership in a sailing club, and sunburn; or between those who make appointments with Dr. Smith, and sickness.  But it would never be argued seriously that the former causes the latter.  That, in a nutshell, is why New York requires proof that causation is generally accepted in the relevant scientific community.
So Cornellwill likely turn on whether the Court of Appeals views causation and association as starkly different as these examples illustrate, or whether it accepts the more highbrow argument that causation and association are the same thing, differing only in the degree of experimental proof available for each.
                                                                                    - APX 1/16/14
Arthur Xanthos, causation, Cornell v. 360 W. 51st Realty, Court of Appeals, Fraser, Frye, mold, mold litigation, negligence, premises liability, tenant, toxic tort, warranty of habitability