Nuisance proceeding held non-discriminatory

Real Estate Weekly, Jan 20, 1993 by Sherwin Belkin

In 301 East 69th Street Associates vs. Eskin, the owner terminated a rent-stabilized tenant's tenancy based upon the tenant having disturbed the peace, tranquility and quiet enjoyment of other residents in the building. It was alleged that the offending tenant had cursed at her neighbors; repeatedly slammed her apartment door at all hours disturbing neighboring tenants living in the adjacent apartments; continuously rung the bell of the neighboring tenant for no apparent reason; used foul language, physically assaulted, kicked the belongings and generally threatened a neighboring tenant; verbally abused a neighbor; and had repeatedly yelled at and used profane language towards one of the neighboring tenants. Predicated upon this continuing violative conduct, the owner sought the tenant's eviction. The owner claimed that the tenant's conduct constituted a substantial interference with the comfort and safety of the other tenants and occupants of the building.

The commencement of summary proceedings first resulted in an interim settlement whereby the tenant stipulated that she would cease and desist from any further acts constituting a nuisance. It was provided, however, that the Court would retain jurisdiction over the matter, such that any breach by the tenant of her agreement could result in the proceedings being restored to the calendar.

The owner subsequently received numerous complaints from neighboring tenants in the building. As a result, the matter was restored to the calendar and a final judgment of possession granted to the landlord by Judge Bruce Gould. The tenant has since appealed from this judgment; a decision on the appeal remains pending as of the writing of this article.

The court had found that the tenant's "disorganized behavior" was not attributable "to willfulness" but was "as a result of her medical condition". Specifically, the tenant's doctor had testified that she was under treatment for schizophrenia and that she was taking medication to control her condition.

It was the presence of this condition that caused the tenant, on appeal and before the United States Department of Housing and Urban Development, to assert that the owner's commencement and prosecution of a nuisance proceeding constituted discrimination on the basis of a mental handicap in violation of the Fair Housing Act (42 U.S.C. 1-19). Although the appeal has not yet been decided by the Appellate Term, the discrimination issue has been specifically rejected by HUD.

In United States Department of Housing and Urban Development on Behalf of Eskin vs. 301 East 69th Street Associates. et al. the federal agency found that the owner's action to remove the tenant from the premises was based on complaints received from other tenants and the good faith belief that the tenant's behavior and continuing presence in the building constituted an actionable nuisance. The Federal agency noted that the Fair Housing Act:

"... does not require that a dwelling 'be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."'

Accordingly, the agency accepted the owner's position, as urged by their counsel, Joseph Burden and David M. Skaller of Belkin Burden Wenig & Goldman that:

"The fact that [the tenant's] behavior as a result of her handicap does not mean that the behavior must be accepted or excused by others. Nor does it lead to the conclusion that respondents discriminated against complainant based upon her handicap."

As a result, HUD's Regional Counsel determined that reasonable cause did not exist for a finding that a discriminatory housing practice has occurred. Therefore, the agency issued a "Determination of No Reasonable Cause" and dismissed the administrative complaint.

In this case, the owner was quite cognizant of and sympathetic to the tenant's circumstances. It was for this reason that the owner opted, initially, to enter into a probationary stipulation, hoping that the tenant's medical treatment of her condition would result in a diminution of her objectionable conduct. Unfortunately, for all concerned, the interference with the rights of other tenants continued. The anti-discrimination provisions of the Fair Housing Act were intended neither to create an immunity for tenants whose behavior constitutes a nuisance nor to result in a reduction in the rights of neighboring tenants. As a result, notwithstanding a tenant's physical or mental disability, tenant conduct which interferes with the rights of the owner or the other occupants of the building will not be shielded by the Fair Housing Act. An owner has a responsibility to insure that one tenant does not act to the detriment of others. Where such conduct occurs, the owner is fully within its rights in seeking to terminate the offending tenancy, notwithstanding the underlying cause of the violative conduct.