Board of Managers of 400 Central Park West Condominium v. Josefina Henriquez-Berman and Charlie Berman
Supreme Court of the State of New York, New York County, January 6, 2017
Plaintiff, a residential Board of Managers (the “Board”) of a condominium commenced this action against a unit owner and her co-occupant (together, “Defendants”) to recover unpaid common charges and to enjoin them from smoking marijuana in the unit, allowing smoke to permeate into the common areas and other units in the building and creating excessive noise. The Board alleged that the smoking and excessive noise violated the nuisance and use provisions of the Condominium’s By-Laws (the “By-Laws”). In support of its claim, the Board submitted an affidavit from the property manager stating that the unit owner had been fined at least 10 times for her violations of the By-Laws regarding the smoking and loud noises emanating from the unit.
In granting the Board’s motion, the lower court held that the Board demonstrated a likelihood of success on the merits on its claims against the unit owner for breach of the By-Laws and against Defendants for nuisance. The lower court reasoned that Defendants “engaged in a practice that was a source of annoyance to the condominium’s residents or occupants and the conduct interfered with the residents’ and occupants’ peaceful possession of their units.” Irreparable injury was demonstrated because “any injury caused by the smoke conditions arising from the defendants’ conduct is not compensable by money damages.” The balancing of the equities tipped in favor of the Board as the detriment to the Defendants by granting the injunction was “far outweighed by the detriment that would inure to the [Board] and the defendants’ neighbors by virtue of exposure to the smoke and excessive noise were the motion denied.”