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Misery Loves Company – Or Does It?

By Marcie Waterman Murray, Esq.

Nancy often comes home to find in front of her apartment door disturbing pictures cut from magazines to which her neighbor subscribes.

Alan frequently is found passed out drunk, sometimes partially naked, in the co-op’s elevator and public hallways. He likes to have his liquor delivered to his apartment from the store around the corner. His apartment is filled with stacks of garbage and jars of waste.

Cathy, who works long hours and really needs her sleep when she gets home, is constantly being disturbed by loud, late-night arguments between mother and emotionally-challenged son who are tenants of the next-door shareholder.

Marty and Reny lived for 17 years in their co-op without a problem until their neighbor transferred to Singapore for a year, leaving their 18 year old in the apartment. The son thought this was a good opportunity to share his freedom with his friends — all of them, nearly all the time. The many loud parties and sweet aroma of marijuana prompted Marty to call the police.

Nancy, Alan, Cathy and Marty and Reny are miserable fellow travelers, all being repeatedly disturbed by neighbors.  As the attorney for the cooperatives involved, I was asked to provide advice after the managing agent received letters of complaint from them.  As shareholders in a cooperative, you may find yourself in a similar, unenviable position of being bothered by some chronically intolerable behavior of a neighbor. What should you do?

The first step is a polite complaint directly to the shareholder. Yelling and screaming are counterproductive and usually just escalate an already unhappy situation. If that doesn’t work (Nancy’s neighbor denied the incidents; Alan’s neighbor was unable to help himself; Cathy’s neighbors were more focused on their own problems; and Marty and Reny’s neighbor’s son didn’t care and wasn’t passing the complaint on to his parents) keep in mind that you can always sue for nuisance.

Understandably, few shareholders initially go to court because of the expense. Instead, they turn to the co-op for help.  What I look for are clear and detailed lists of incidents which form the basis of the complaint(s). Who did what, when, and how often? As the co-op’s attorney, I cannot do anything without a precise description of the problems because that’s what a court demands. A one-time bothersome act will not constitute the type of breach of the proprietary lease or house rules that can sustain a Notice to Cure or any further legal action.  MOST IMPORTANTLY, however: is the complainant willing to testify in court? If the answer is “no,” the cooperative can’t really help.  Here’s why.

At the end of the day, the co-op can seek only two types of remedies. The first is what is called a “holdover” proceeding in housing court, meaning that the lease has been terminated based on a failure to cure a breach of the lease (e.g., based on objectionable conduct) and the shareholder is now “holding over” in the apartment during the court proceeding which is the eviction action. This is the likely remedy sought.  The less likely alternative remedy (because it takes longer and usually costs more) is a suit in Supreme Court asking for the judge to enjoin the behavior complained of.  In either case, and particularly because the result of an eviction action is so dramatic, the court wants to hear and see the complainant in the flesh to determine if the behavior is so egregious as to warrant the loss of one’s home, the issuance of a order to do or refrain from doing something and the award of attorneys’ fees to the cooperative. Affidavits will not suffice, and sworn statements cannot be cross-examined.

So, the more complainants the better and if no one is willing to take the time to testify, the case is doomed from the start.  Often shareholders are not aware of this and don’t understand why the co-op “can’t do something” based on anonymous complaints.

So let’s assume that the complaint is neatly written, sufficiently detailed and the complainant is willing to testify in court. But no one really wants to go to court. That’s why I look for a non-judicial solution.

Nancy’s neighbor refused to admit what he was doing.  After a review of privacy laws, the cooperative mounted a camera in the public hallway and caught the suspected offender in the act,  which stopped him from bothering Nancy.

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