The opinion
Breiterman v 89th & Madison Owners Corp.
2025 NY Slip Op 30176(U)
January 16, 2025
Supreme Court, New York County
Docket Number: Index No. 151146/2023
Judge: David B. Cohen
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. 151146/2023
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/16/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DAVID B. COHEN PART 58
Justice
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CHARLES BREITERMAN, SEYMOUR BREITERMAN,
MOTION DATE 10/18/2023
Plaintiffs,
MOTION SEQ. NO. 001
-v-
89TH & MADISON OWNERS CORP., ALLIED PARTNERS
MANAGEMENT LLC, ROSE ASSOCIATES, INC.,ALLIED DECISION + ORDER ON
PARTNERS RESIDENTIAL MANAGEMENT LLC MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
47, 48, 49, 50, 51, 52
were read on this motion to/for DISMISS .
Plaintiffs, father and son, live in a rent-controlled apartment in a condominium building,
at 45 East 89th Street in Manhattan, New York (the premises). As set forth below, they sue
defendants on account of construction noise associated with the renovation of other apartments
in the premises, asserting claims for trespass, negligence, nuisance, and breach of the covenant of
quiet enjoyment, among others.
Defendants move for an order dismissing the action, which plaintiffs oppose.
I. AMENDED COMPLAINT (NYSCEF 9)
Plaintiff Charles Breiterman is the son of Seymour Breiterman, the leaseholder of
Apartment 24B at the premises (NYSCEF No. 9, ¶¶1-4). While both are plaintiffs, the core
allegations in the complaint pertain primarily to Charles Breiterman, who will be referred to
below as plaintiff (id. at ¶¶ 36, 38). During the time period at issue in this action, plaintiff was
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studying for a PhD in American Studies (id. at ¶¶ 37, 101), and during the COVID-19 pandemic,
his study was primarily confined to his apartment.
Defendants are the building corporation (89th & Madison Building Corp.), the building's
management company (the two Allied Partners entities) and the owner of plaintiffs’ apartment
and approximately 40 other rental apartments in the building (Rose Associates, Inc.) (id. at ¶¶ 5-
10).
Plaintiff alleges that in March 2021, as the COVID lockdown began to ease, there was
construction work performed on Apartments 25C, 27AB, 30AB, 30C in the premises (id. at ¶
13), and in 24C beginning in January 2022, "a complete demolition and renovation" on his
apartment’s floor, which was "so loud it was like living next to a heard [sic] of stampeding
elephants" (id. at ¶ 37), which disrupted and delayed his PhD dissertation studies.
Based on the alleged noise and disruption from the construction in the premises, plaintiff
alleges "the building has allowed far too much renovation and interior demolition," which "have
constituted a substantial interference in the ability of plaintiff to do quiet intellectual work in his
home” (id. at 145). Plaintiff maintains that defendants’ conduct thus violated his covenant of
quiet enjoyment.
On February 8, 2022, plaintiff alleges he went to 24C, knocked on the door, and when
there was no answer, he opened the door and stood on the door saddle to record the noise. He
admits that he "opened the door and started yelling” (id. at ¶¶ 50, 58), and that "the intense level
of frustration [he] felt due to not being able to work on his PhD prospectus and the
incredibly loud noise caused [him] to crack” (id. at ¶ 57).
Approximately 10 minutes later, the building's resident manager, Rudy Mercado, entered
plaintiff’s apartment to admonish plaintiff that he could not go into another apartment or behave
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the way he did (id. at ¶ 63). While plaintiff admits that the door to his apartment was open when
Mercado entered because of other work that was ongoing, he nevertheless asserts that Mercado’s
entry constituted an unlawful trespass (id. at ¶ 65, 67).
Subsequently, the building’s attorneys sent plaintiff a "cease and desist" letter, which he
claims grossly exaggerated his behavior in entering 24C (id. at ¶¶ 79-88), and constitutes
defamation. Plaintiff contends that the letter was published when it was sent to his landlord,
Rose Associates (id. at ¶ 81).
Plaintiff also alleges that the defendants failed to post two notices, the Safe Construction
Bill of Rights (NYC Ad. Code Section 27-2009.2[b][1] et seq.), and the Notice of Tenant
Protection Plan (NYC Ad. Code Section 28-120.1.3 et seq.), which inform tenants whom to
contact concerning issues at the premises, including construction noise complaints such as those
at issue here (id. at ¶¶ 120-32). Plaintiff asserts a negligence claim based on this failure, alleging
that he had “a kind of mental breakdown” and "was unable to get his PhD work done, therefore
unable to meet a crucial deadline on his PhD program and was terminated from the
program. That course of events is the main cause of damages” (id. at ¶ 132).
The relief that plaintiff seeks for these alleged wrongs include an injunction retracting the
alleged defamatory letter; an injunction requiring the transfer of Mercado to other employment;
compensation, "at reasonable attorney's rates," for time spent drafting responses to the “cease
and desist” letter, researching various Code, and arranging and waiting for Building Department
inspections requested by him; an injunction requiring that defendants "work with plaintiff to
develop a plan to minimize noise in the building going forward"; and damages "for the extreme
stress" he allegedly suffered, which "shortens ones [sic] life span and quality of life," and
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including having been "denied an important life goal of earning a PhD" which caused his “entire
sense of who he is [to] be dramatically negatively affected for the rest of his life" (id. at 155-68).
II. LEGAL ANALYSIS
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7),
the relevant pleading is to be afforded a liberal construction, and the Court must accept the facts
alleged therein as true, accord plaintiff the benefit of every possible favorable inference and
determine whether the facts alleged fit within any cognizable legal theory (Leon v Martinez, 84
NY2d 83 [1994]).
A. Trespass claim
A claim for trespass requires a showing that a person, without justification or permission,
intentionally entered another person’s property (SJWA LLC v Father Realty Corp., 221 AD3d
552 [1st Dept 2023]).
Even if plaintiff’s apartment door was open, plaintiff sufficiently pleads that Mercado
entered his apartment without justification or permission, thereby stating a claim for trespass.
Defendants’ allegations that plaintiff’s father permitted Mercado to enter or that the entry was
justified by plaintiff’s behavior or Mercado’s duties as the building manager, are disputed by
plaintiff, and thus insufficient to support dismissal of the claim.
As a showing of actual damage resulting from the trespass is not required, defendants’
arguments that the claim should be dismissed as plaintiff suffered no damage have no merit (see
Shrage v Con Edison Co., 216 AD3d 1023 [2d Dept 2023] [even if trespass is de minimis and no
actual injury resulted, plaintiffs entitled to nominal damages]).
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B. Defamation claim
Plaintiff asserts a claim for defamation based on the letter sent to him by
counsel following the incident on February 8, 2022, claiming that the facts asserted therein were
exaggerated to the point of falsity. Defendants argue that the facts in the letter are true and thus
privileged. They also maintain that the letter does not meet the "publication" requirement for a
claim of defamation or libel.
For a statement to be defamatory, it must be published to a third party, and plaintiff
asserts that the publication was made to his landlord, Rose Associates. However, a privilege
exists for publication to multiple parties who share a common interest in the subject matter
(DiColby v Syracuse Univ., 191 AD3d 425 [1st Dept 2021]; Ashby v ALM Media, LLC, 110
AD3d 459 [1st Dept 2013]).
As a landlord that owns apartments in a building undoubtedly shares a common interest
in the management and security of the building and behavior of its tenants with the corporation
that owns and manages the same building, defendants’ letter is privileged (see e.g., Harpaz v
Dunn, 203 AD3d 601 [1st Dept 2022] [board president and attendees of board meeting shared
common interest and thus alleged defamatory statements made by president about plaintiff board
treasurer were privileged]; Mughetti v Makowski, 162 AD3d 1444 [3d Dept 2018] [common
interest between manager and employees regarding company’s management]; Burns v Palazola,
22 AD3d 779 [2d Dept 2005] [statements in letter were not defamatory as defendant’s supervisor
shared reason for plaintiff’s termination with two people in management]), and thus defendants
established that their letter was not defamatory.
In light of this result, there is no need to consider defendants’ other arguments on this
claim.
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C. Negligence claim
Plaintiff also brings a claim for negligence, for the building's failure to post two required
City notices regarding tenant protection during building construction. Plaintiff alleges that the
building was issued two summonses for that failure in May of 2021, one of which was sustained
and one of which was dismissed for failure to name and serve the proper party. He maintains
that defendants’ negligence caused him damages.
Defendants argue that they had no duty to plaintiff related to the notices, and that a
failure to comply with a contractual obligation, standing alone, is insufficient to prove
negligence. They also contend that plaintiff failed to prove he sustained damages related to their
alleged negligence.
A negligence claim requires a showing of: (1) a duty of care owed to the plaintiff by the
defendant; (2) the breach of that duty; and (3) that plaintiff suffered injury as a proximate result
of the breach of duty (79 NY Jur 2d, Negligence 12 [2024]). The alleged injury must have been
proximately caused by the breach (Cavosie v Hussain, 215 AD3d 837 [3d Dept 2023]), and the
alleged damages must be non-speculative (Reale v Sotheby’s, Inc., 278 AD2d 119 [1st Dept
2000]).
Here, plaintiff alleges no non-speculative damages or injuries that were or could have
been caused by defendants’ failure to post the notices, and thus fails to state a claim for
negligence (see e.g. Burke & Sullivan, PLLC v JP Morgan Chase Bank, 190 AD3d 814 [2d Dept
2021] [court properly dismissed negligence claim as alleged negligence was not proximate cause
of plaintiff’s damages]).
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D. Nuisance claim
The Court of Appeals has outlined the elements of a claim for nuisance as follows:
[O]ne is subject to liability for a private nuisance if his conduct is a legal
cause of the invasion of the interest in the private use and enjoyment of
land and such invasion is (1) intentional and unreasonable, (2) negligent or
reckless, or (3) actionable under the rules for abnormally
dangerous conditions or activities.
(Copart Industries, Inc. v Consolidated Edison Co. of New York, Inc., 41 NY2d 564
[1977]). Another formulation of the elements of the common law cause of action for a private
nuisance is: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in
character, (4) with a person's property right to use and enjoy land, and (5) caused by another's
conduct” (61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010]). Not every
annoyance constitutes a nuisance, and a nuisance requires a continuous invasion of rights
(Domen Holding Co. v Aranovich, 1 NY3d 117 [2003]).
Plaintiff’s pleading does not sufficiently allege that defendants’ renovations of their
premises were “unreasonable in character,” as it is undisputed that defendants had the right to do
so (see 22 Irving Pl. Corp. v 30 Irving LLC, 57 Misc3d 253 [Sup Ct, New York County 2017]
[dismissing nuisance claim based on construction of sidewalk bridge, as bridge was required by
law and for public safety, and thus could not be deemed unreasonable]; see also Howard v
Reserve at Spaulding Green, 225 AD3d 1232 [4th Dept 2024] [nuisance claim dismissed where
plaintiffs alleged that defendant’s construction of new home ruined plaintiffs’ view from home
and blocked sunlight]; Harris v Miranda, 219 AD3d 1498 [2d Dept 2023] [plaintiff did not show
that excessive noise coming from neighbor’s parties was unreasonable in character]; Langan v
Bellinger, 203 AD2d 857 [3d Dept 1994] [plaintiff did not sufficiently allege that church’s
playing of church bells was unreasonable in character]).
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Moreover, to the extent that the renovations caused noise which bothered plaintiff, a
nuisance claim based on noise is generally sustained when other issues are present, such as
construction debris or property damage or when the noise exceeds permitted sound levels, none
of which is alleged by plaintiff here (see e.g., Reade v Reva Holding Corp., 30 AD3d 229 [1st
Dept 2006] [plaintiff stated claim for nuisance based on allegations that objectional conduct was
recurring and included leaks to premises and, at least twice, water pipes freezing and bursting];
61 W. 62, 77 AD3d at 334 [rooftop bar exceeded noise ordinance intentionally and in furtherance
of own commercial purposes]; Koretz v 363 East 76th Street Corp., 178 AD3d 445 [1st Dept
2019] [dust, debris, vermin and ramp blockage, in addition to construction noise, requiring
tenant to vacate for two weeks]).
For these reasons, plaintiff fails to state a nuisance claim.
E. Breach of the Covenant of Quiet Enjoyment claim
A claim of the breach of the covenant of quiet enjoyment requires that the plaintiff has
been evicted, either actually or constructively, which requires abandonment of the premises
(Duane Reade, 30 AD3d at 237). Other than leaving the premises for two days to stay at a hotel,
plaintiff does not allege that he was constructively evicted or that he abandoned the premises,
and thus fails to state a claim for breach of the covenant of quiet enjoyment.
F. Any remaining claims
Plaintiff has withdrawn his claims for prima facie tort and intentional infliction of
emotional distress. While plaintiff cannot “reserve” the right to assert a future claim, he may
move for leave to amend, if and when necessary.
Plaintiff also has failed to oppose dismissal of his claims for injunctive relief and
punitive damages, as such they are dismissed.
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CONCLUSION
Accordingly, it is hereby
ORDERED, that defendants’ motion to dismiss is denied as to plaintiffs’ claim for
trespass, but is granted as to all of the other claims, which are severed and dismissed, and the
clerk is directed to enter judgment accordingly; it is further
ORDERED, that as the remaining claim of trespass may only provide plaintiffs with
nominal damages in this lawsuit, the parties are directed to contact Special Master Richard
Swanson at rpswanson432@gmail.com or (212) 788-0783 in order to schedule a settlement
conference with him; and it is further
ORDERED, that if the settlement conference is not successful, the parties may contact
the court to obtain a schedule for defendants to file their answer and for a preliminary conference
thereafter.
1/16/2025
DATE DAVID B. COHEN, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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