The opinion
333 E. 57th St. Corp. v Molina
2024 NY Slip Op 32863(U)
August 14, 2024
Supreme Court, New York County
Docket Number: Index No. 154705/2024
Judge: Paul A. Goetz
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 154705/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/14/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. PAUL A. GOETZ PART 47
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 154705/2024
333 EAST 57TH STREET CORPORATION, BY ITS BOARD
OF DIRECTORS, ION SCUTARU MOTION DATE 05/20/2024
Plaintiff, MOTION SEQ. NO. 001
- V -
DECISION + ORDER ON
RAYMON MOLINA,
MOTION
Defendant.
------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 10, 12, 13, 14, 15,
18, 19,20,21,22,23,24
were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR
In this nuisance action, plaintiff 333 East 57th Street Corporation a residential cooperative
corporation owns the building located at 333 East 57th Street, New York, NY 10022 and plaintiff
Ion Scutaru, is the resident manager of the building. Plaintiffs move for a preliminary injunction
enjoining defendant from coming within 50 feet of the building pending a determination of
plaintiffs' claims. 1 In light of the sharp factual conflicts raised in the parties' affidavits, a
hearing was held on August 13, 2024.
BACKGROUND
Defendant worked as a porter for the corporation from January 31, 2012 until October 18,
2021 (NYSCEF Doc No 2 ,i 8). In July 2021, Scutaru asked defendant to provide him with his
proof of vaccination against COVID-19, as required of all employees of the corporation
(NYSCEF Doc No 5 ,i,i 4-5 and hearing testimony). Defendant expressed that he did not intend
1
On May 23, 2024 plaintiffs' request for a temporary restraining order enjoining and restraining defendant from
coming within 50 feet of the building was granted (NYSCEF Doc No 10).
154705/2024 333 EAST 57TH STREET CORPORATION, BY ITS BOARD OF DIRECTORS ET AL Page 1 of 5
vs. MOLINA, RAYMON
Motion No. 001
1 of 5
[* 1]
INDEX NO. 154705/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/14/2024
to get the vaccine (id. and hearing testimony). Scutaru told defendant that he would be given a
few additional weeks after defendant's union's deadline to get vaccinated but warned that he
would be terminated ifhe did not comply with the vaccine requirement (id. ,i 6 and hearing
testimony). On October 13, 2021, defendant emailed Scutaru, stating: "Be advised I will not be
inserting any foreign substances into me in the name of your health fears" (NYSCEF Doc No 19,
p. 16). Approximately an hour later, he sent a second email, stating: "Please be advised that due
to the vaccination mandate, I can no longer work as a porter at 333 East 57 street" (id., p. 17 and
hearing testimony). Defendant testified that Scutaru pressured him to write the email. However,
defendant returned to work in the following days (NYSCEF Doc No 5 ,i 6 and hearing
testimony). On October 18, 2021, Scutaru terminated defendant (id. and hearing testimony) and
defendant received his first shot of the vaccine (defendant's ex C & D ). Scutaru alleges that in
response, "Molina began to scream at [him] and threatened to kill [him] and harm [his] wife and
kids" (id. ,i 7 and hearing testimony).
In the months following his termination, defendant "regularly" appeared at the building;
he would stand or pace on the sidewalk in front of the entrance and shout at Scutaru, repeatedly
using homophobic slurs and other obscenities, challenging him to a physical fight, and otherwise
causing loud disturbances (id. ,i 9; plaintiffs ex 2, videos depicting defendant's conduct).
Plaintiffs allege that defendant started visiting the building on a daily basis beginning on May 6,
2024, and that he has been "screaming and threatening [Scutaru] and the Building's residents in
the same manner as he had previously" (id. ,i 12 and hearing testimony). Plaintiffs allege that
though defendant was arrested briefly on May 8, 2024, the police advised that they would be
unable to arrest defendant again unless he became physically violent (id. ,i 13). Scutaru and the
building's porter Richie Lucero testified that at times residents of the building are afraid to leave
154705/2024 333 EAST 57TH STREET CORPORATION, BY ITS BOARD OF DIRECTORS ET AL Page 2 of 5
vs. MOLINA, RAYMON
Motion No. 001
2 of 5
[* 2]
INDEX NO. 154705/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/14/2024
the lobby entrance of the building while defendant is conducting his protest. Plaintiffs thus seek
a preliminary injunction and temporary restraining order to keep defendant away from the
building while plaintiffs litigate their causes of action for nuisance and a permanent injunction.
Defendant opposes on the basis that his conduct is an act of protest in a public place, i.e., the
sidewalk and that his actions are not illegal (NYSCEF Doc No 19 and hearing testimony).
DISCUSSION
"A preliminary injunction may be granted ... where the plaintiff has demanded and
would be entitled to a judgment restraining the defendant from the commission or continuance of
an act, which, if committed or continued during the pendency of the action, would produce injury
to the plaintiff' (CPLR § 6301). A preliminary injunction will only be issued if a plaintiff
"demonstrate[ s] a probability of success on the merits, danger of irreparable injury in the absence
of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fina Arts
Housing, Inc., 4 NY3d 839, 840 [2005]).
Plaintiffs have demonstrated with convincing evidence a likelihood of success on their
nuisance claim. In the residential building context, nuisance is defined as "a condition that
threatens the comfort and safety of others in the building" and is evidenced by "a pattern of
continuity or recurrence of objectionable conduct" (Frankv Park Summit Rlty. Corp., 175 AD2d
33, 35 [1 st Dept 1991] [finding apartment building's "guests and staff had already been forced to
endure an intolerable and continuing nuisance" where tenant's family member engaged in
"verbal abuse, profanity and vulgarity toward hotel guests and staff' and made "veiled threats of
physical and sexual assault"], mod on other grounds 79 NY2d 789 [1991]). Here, plaintiffs have
submitted video evidence depicting defendant's aggressive, threatening, and obscene remarks in
front of the building, where staff and residents must pass to enter and exit ( Central Park
154705/2024 333 EAST 57TH STREET CORPORATION, BY ITS BOARD OF DIRECTORS ET AL Page 3 of 5
vs. MOLINA, RAYMON
Motion No. 001
3 of 5
[* 3]
INDEX NO. 154705/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/14/2024
Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 157 AD3d 28, 32 [1 st Dept
2017] ["Plaintiff established a likelihood of success on its cause of action for a public nuisance"
where video evidence showed protestors' loud and aggressive behavior frightening horses]; 33-
39 E. 60th St. LLC v Hunter, 873 NYS2d 237,237 [1 st Dept 2008] ["The trial court's finding of
nuisance is amply supported by the evidence, including surveillance videotapes of the violent
and anti-social behavior of tenant ... which caused the summoning of police"]).
Additionally, plaintiffs are likely to suffer irreparable injury in the absence of an order
enjoining defendant from appearing in the immediate vicinity of the building. Though plaintiffs
and defendant dispute the frequency of defendant's visits, defendant has given no indication that
he intends to stop appearing and continuing his purported protest. As intended, defendant's
conduct has made Scutaru fearful and uncomfortable at his workplace, and his conduct
negatively affects the other staff members and residents of the building.
Finally, a balancing of the equities lean in plaintiffs' favor. Defendant correctly notes that
he has a right to free expression and that "[p ]ublic sidewalks [] are the 'quintessential' public
fora for free speech" (Central Park, 157 AD3d at 34). However, this right "must be balanced
with the other private [] interests involved" (Parkmed Co. v Pro-Life Counselling, Inc., 91 AD2d
551,552 [I8t Dept 1982]), including Scutaru's compelling interest in having a workplace free of
harassment and the building's residents' interest in the quiet enjoyment of their homes. Setting a
50-foot distance restriction on defendant "would provide some security to the building personnel
and to other tenants while merely restraining defendant from continuing any unlawful or
wrongful activities" (Park S. Assoc. v Blackmer, 171 AD2d 468, 469-70 [1 st Dept 1991];
Parkmed Co., 91 AD2d at 554 ["[r]easonable time, place and manner regulations" upheld where
anti-abortion protesters engaged in "shouting, screaming, engaging in physical and verbal
154705/2024 333 EAST 57TH STREET CORPORATION, BY ITS BOARD OF DIRECTORS ET AL Page 4 of 5
vs. MOLINA, RAYMON
Motion No. 001
4 of 5
[* 4]
INDEX NO. 154705/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/14/2024
threats, assault, abuse, harassment, intimidation and property damage"]). Accordingly, the
injunction will be granted.
Finally, while CPLR § 6312 (b) requires plaintiffs to post an undertaking in an
amount fixed by the court, there are no likely potential losses that will be incurred by defendant
in the event that a final determination is made that the injunction is unwarranted. Consequently,
under these circumstances a modest undertaking is appropriate.
CONCLUSION
Based on the foregoing it is
ORDERED that plaintiffs' motion is granted conditioned upon plaintiffs posting an
undertaking in the amount of $2,000.00 and that upon such posting and pending a final
determination of this action, defendant is enjoined and restrained from being within 50 feet of
333 East 57th Street, New York, NY 10022; and it is further
ORDERED that the parties are directed to appear at a preliminary conference on October
3, 2024 at 9:30 am.
8/14/2024
DATE PAUL A. GOETZ, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
154705/2024 333 EAST 57TH STREET CORPORATION, BY ITS BOARD OF DIRECTORS ET AL Page 5 of 5
vs. MOLINA, RAYMON
Motion No. 001
5 of 5
[* 5]