Here’s the Wrong Way to Handle a Noise Complaint in a Co-op

Fights between neighbors involving noise complaints are common in co-ops and condos, but when such disputes escalate into lawsuits, they do not often end up in the Appellate Division of the Supreme Court of New York. However, the case of Silverman v. Park Towers Tenants Corp. did just that. In addition, this case had a ripple effect when another resident was added as a third-party defendant and drawn into the fray.

Park Towers acts to evict. Michael and Deborah Toussie own an apartment in Park Towers, a co-op in Gramercy Park. Their daughter, Danielle Toussie, lived alone in the apartment. The Silvermans, who live next door, alleged that Danielle regularly played music too loudly and slammed doors, and that she and her parents engaged in harassing conduct. Based upon the Silvermans’ complaints to the co-op board and to management about the Toussies’ alleged objectionable conduct, Park Towers brought an eviction action against the Toussies.

A round robin of lawsuits. The Silvermans also brought an action against the Toussies for nuisance and against Danielle for intentional or negligent infliction of emotional distress. The Silvermans also brought an action against Park Towers for not stopping the activities of the Toussies. The Toussies counterclaimed for intentional and negligent infliction of emotional distress. The Toussies brought in as a third-party defendant another neighbor on the floor, Mei Yei Mak, who was a close friend of the Silvermans, claiming Mak contributed to their harassment. Then the Toussies brought an action against the co-op, claiming the board had no right to bring an eviction action against them based on the Silvermans’ false complaints.

Mak made a motion to dismiss the Toussies’ counterclaim, which alleged that she engaged in a “deliberate, systematic and malicious campaign of harassment and intimidation” against Danielle in concert with the Silvermans. The “campaign” allegedly included obtaining unauthorized access to Danielle’s private Instagram account, accosting and yelling at her in common areas, taking photos of her without her permission, and making false noise complaints about her to the board.

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What happened in court. The court considered the various elements of a cause of action for intentional infliction of emotional distress: extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and the injury; and severe emotional distress. The court stated that the conduct must be “utterly intolerable in a civilized community.” The court also noted that where an individual act may not qualify, a longstanding campaign of deliberate, systematic and malicious harassment is actionable.

The court held that while the Toussies alleged enough outrageous conduct so as to make their claims against the Silvermans plausible (though not yet proven), it rejected Mak’s motion to dismiss the harassment claims against her. Mak appealed the decision. The Appellate Division affirmed the Supreme Court ruling, with a modification: it held that the court should have dismissed the counterclaim against Mak for negligent infliction of emotional distress and only allowed the action for intentional infliction of emotional distress. The court held that since the Toussies did not allege that Mak had any legal obligations to them, the negligence claim must fail.

Lessons to be learned. When a board steps in to try to resolve an issue between residents, it might find itself named as a defendant. Likewise, if a neighbor gets involved by, say, sending correspondence to the board, the neighbor may also get drawn into the case. It is only logical to assume that the more parties added, the more time and money they will have to expend and that animosity will increase.

Attorneys:

For appellant: Erik Groothuis of counsel, Schlam Stone & Dolan, New York

For respondents: Bruce H. Wiener of counsel, Warshaw Burstein, New York 

Andrew P. Brucker is a partner at the law firm Armstrong Teasdale. The statements and views in this article are his own and not necessarily those of the firm.