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Adam Leitman Bailey, P.C. Uses Creative Lawyering to Stave Off Eviction for Broadway Actress

By Christopher Halligan


After a cooperative/landlord commenced a nuisance proceeding seeking to evict a tenant/shareholder —a Broadway actress —from her luxury Upper West Side building because cigarette odors were allegedly emanating from her apartment into the common hallway of the building, the tenant, who was referred to Adam Leitman Bailey, P.C. by a retired State Supreme Court Justice, retained ALBPC to defend her.

Due Diligence

Immediately upon being hired, Adam Leitman Bailey, P.C. performed its due diligence by visiting the tenant’s apartment to investigate the veracity of the landlord’s claims. Upon inspecting the subject property, Adam Leitman Bailey, P.C. discovered that there was absolutely no smell of cigarette odor in the common hallway, and therefore, that the landlord’s position was untenable. Accordingly, in an effort to resolve the matter expeditiously and without forcing the parties’ to expend substantial sums on litigation, Adam Leitman Bailey, P.C. invited the landlord to participate in a joint inspection of the common hallway to show that the cooperative’s claims lacked merit. At the joint inspection, although the landlord’s representatives conceded that they could not discern any smoke odors in the hallway, they attempted to enter into the tenant’s apartment in direct violation of the tenant’s privacy rights. Additionally, since the tenant had the explicit right to smoke in her apartment given that smoking was not restricted under her proprietary lease, Adam Leitman Bailey, P.C. refused to allow the landlord to enter into the tenant’s apartment. However, the landlord claimed that it needed to enter the tenant’s apartment in order to determine whether smoke odors were escaping into the hallway whenever the tenant opened her door, and unwisely refused to resolve the matter unless it was granted access into the tenant’s apartment. Adam Leitman Bailey, P.C. adamantly refused the landlord’s illegal demands and cautioned the landlord not to proceed with its frivolous proceeding.

Trial

At the trial, Adam Leitman Bailey, P.C. argued that the tenant’s proprietary lease and house rules, which were drafted in or around 1979, specifically prohibited “unreasonable cooking or other odors” that interfere with the “rights, comfort and convenience of other Lessees,” but made no mention of cigarette odor. Adam Leitman Bailey, P.C. pointed out that cigarette odors were not explicitly mentioned in either the lease or house rules because cigarette odor was certainly not considered offensive in 1979, at or around the time that the proprietary lease was drafted, nor in 2000, when the tenant actually executed her lease. Moreover, Adam Leitman Bailey, P.C. posited that the landlord’s case simply could not lie under the relevant controlling documents because both the landlord’s and tenant’s proofs conclusively established that no cigarette odor existed in the common hallway directly outside of the tenant’s apartment. One of the tenant’s witnesses was a well known retired Supreme Court Justice, who testified at the trial that she visited the hallway on multiple occasions and was unable to smell any cigarette smoke in the hallway. Furthermore, Adam Leitman Bailey, P.C. argued that even if the smoking odors were present, as the judgment that they are or are not offensive is purely a subjective matter, the proceeding should be dismissed even if the landlord had proved what it had set out to prove. In addition, Adam Leitman Bailey, P.C. attacked the landlord’s false predicate Notice to Cure on technical grounds since it falsely stated that multiple tenants complained about the alleged smoke odor emanating from the tenant’s apartment into the hallway, whereas the record conclusively established that only one tenant, who resided in 1 out of the 113 units in the building ever complained of such odors.

Post-Trial Brief

In the tenant’s post-trial brief, Adam Leitman Bailey, P.C. cited to relevant authority holding that people may be evicted only for objectively bad conduct, but that the conduct complained of in this case was at worst purely subjectively bad, as seen in the eyes of some people—indeed, really only one person who resided in 1 out of the building’s 113 apartments. Thus, Adam Leitman Bailey, P.C. argued that the facts that were proffered during trial clearly did not rise to the objective level of sociopathic conduct that would be necessary to sustain an eviction under New York law.

The Landlord Tenant Court agreed with all of Adam Leitman Bailey, P.C.’s arguments in dismissing the landlord’s notice of petition and petition with prejudice.

Adam Leitman Bailey, P.C. attorneys Christopher E. Halligan litigated the matter for the tenant and Dov Treiman drafted the tenant’s post-trial brief.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS