A reader forwarded a video of Oklahoma State coach Mike Gundy taken after the Cowboys' 49-45 win over Texas Tech this past weekend.

Rather than talk about the game, Gundy launched into a 3 1/2 minute tirade over some unfavorable press coverage one of his players had received in the Oklahoman; a local paper. (In her piece, the reporter, Jenni Carlson, questioned why player Bobby Reid had been demoted as the team's starting quarterback.)*

"If anybody hasn't read this article,” Gundy began as he held up a copy of the Oklahoman's sports page, "I think this is worth reading. Three-fourths of this is inaccurate. It's fiction. And this article embarrasses me to be involved with athletics.

"That article had to have been written by a person that doesn't have a child. And has never had a child that has had their heart broken and come home upset and had to deal with a child when he is upset. And kick a person when he's down."

It is yet another inappropriate display of emotion -- a temper tantrum -- that is making its way across the Internet.

Clearly, Gundy is in dire need of anger management counseling. (We're not quite sure how this presentation was intended to diffuse the situation or change the media's perception of the underlying report. If anything, it has drawn national attention to the Carlson article and has likely made a bad situation worse.)

To download the video, please use this link: Gundy Goes Gaga**

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*To access the piece, use this link: Carlson on Reid (registration required)

**Some have compared Gundy's outburst to Chris Crocker's "LEAVE BRITNEY ALONE!" video.  Unfortunate, no?

Posted by Lucas A. Ferrara, Esq. at 3:25 PM | Permalink | TrackBacks (0) | Comments (0)

You've already heard about the incident and seen the video involving Andrew Meyer, a 21-year old University of Florida student who was tasered by police for disrupting an on-campus speech being given by Senator John Kerry.

Meyer has his own website, and a reputation for being a practical joker, but this time the kid took it a bit too far.

Meyer's wailing and theatrics, as officers tried to escort him out of the auditorium, were "over the top." (And, if it wasn't a publicity stunt, the kid's response suggests that he suffers from a form of mental illness which needs to be examined.)

Meyer faces an array of criminal charges (for disrupting the event), and there's also the possibility of suspension or expulsion from the University. And, frankly, after seeing the video of the arrest, we have no sympathy for the guy.

As CNN Host Nancy Grace has been known to proclaim, "HE SHOULD FRY!"

Undeniably, officers overreacted when they tasered the big lug (and will likely face discipline and a civil lawsuit for that conduct), but that doesn't excuse Meyer's misbehavior. The University's Student Conduct Code is clear. Students are not permitted to disrupt school related events, engage in violative on-campus demonstrations, and/or breach the peace.*

An example needs to be made, and a message sent to others, that this kind of behavior will not be tolerated.

There's a time and place for expressing oneself. This wasn't it.

To download a copy of the video, please use this link: Andrew Meyer's arrest

Now watch: We're willing to bet the kid gets offered a lucrative job with some comedy show, or ends up with a multi-million dollar book and movie deal. (We could just see him doing shtik for the likes of Howard Stern. Sad, no?)

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*(j) CONDUCT DISRUPTIVE TO THE UNIVERSITY COMMUNITY.
Conduct that is disruptive to the University's educational objectives, to its operations, or to its officials, staff, and faculty in the performance of their work, or to any other aspect of its mission. Such conduct includes, but is not limited to:
      1. Disruption of a class, University activity, or any other normal activity held on University property or at a University location.
      2. Classroom behavior that interferes with either (a) the instructor's ability to conduct the class or (b) the ability of other students to benefit from the instructional program.
      3. Violation of the Campus Demonstration Regulation, Regulation 6C1-2.002.
      4. Conduct which is disorderly or a breach of the peace.

* * *

DEMONSTRATION POLICY UNIVERSITY OF FLORIDA; CAMPUS DEMONSTRATIONS
1. Demonstrations may be held anywhere on the campus, so long as they do not disrupt the normal operation of the University community, except that no demonstrations are permitted inside University buildings. Although no specific areas on the campus are designated for the purpose of demonstrations or impromptu speeches, exclusive use of the Plaza of the Americas for this purpose may be obtained by prior clearance through the Office of Student Activities (300 JWRU). Any use of sound amplification equipment on the campus must also have prior clearance through this office.

2. In order that demonstrators not interfere with the operation of the University or the rights of others, they shall not:
a. obstruct vehicular, bicycle, pedestrian, or other traffic;
b. obstruct entrances or exits to buildings or driveways;
c. interfere with educational activities inside or outside the building;
d. harass passersby or otherwise disrupt normal activities;
e. interfere with or preclude a scheduled speaker from being heard;
f. interfere with scheduled University ceremonies or events; or
g. damage property, including lawns, shrubs, or trees.

Posted by Lucas A. Ferrara, Esq. at 3:25 PM | Permalink | TrackBacks (0) | Comments (5)

Where does a "homeless" person primarily reside?

That was one of the questions addressed by the New York County Civil Court in the case of TOA Constr. Co., Inc. v. Tsitsires.  Since the tenant disliked the regulated unit, and preferred to live "on the streets," or at his friends' homes, the Housing Court Judge was of the opinion that the tenant failed to demonstrate an "ongoing, substantial, physical nexus with the [stabilized] premises for actual living purposes."  As the Housing Court noted in an 18-page, post-trial decision:

The court finds that petitioner met its burden of proof to show that respondent did not use the apartment as his primary residence or for actual living purposes during the Golub period. He maintained a homeless lifestyle likely caused, one psychiatrist explained, by substance abuse. Another psychiatrist stated that he is claustrophobic and hates his apartment.

The court also finds that petitioner need not prove that respondent lived at an alternative address during the Golub period. It is enough that petitioner proved that respondent abandoned the apartment to live on the streets, in the park, on stoops, and at his friends' homes. The Legislature's objective of protecting the housing stock will not be advanced by allowing respondent to use the subject apartment as he did only to store his belongings, receive mail, and let his girlfriend shower.

Condemning the regulated tenant to a life on the streets was an unpalatable outcome for the Appellate Term, First Department, which reversed and dismissed the nonprimary-residence holdover case.  In a decision dated December 20, 2006, the AT asserted that "public policy concerns" did not support the eviction of a "seriously disturbed tenant" and that an affirmance of the trial court's judgment would "in essence be a judicial finding that tenant maintains his primary residence on a park bench."

"The facts are what they are."

In a cogent dissent, Justice William P. McCooe found the trial court's decision to be "well reasoned" and consistent with existing law.  He further concluded as follows:

The subject premises are not the tenant's primary residence because he does not use it for actual living purposes, only storage. His girlfriend uses it to shower and she keeps the only key. He has lived on the street for many years. Based upon his long-term psychiatric history and refusal to take medication, there is no claim or indication that he intends to return to the premises for actual living purposes.

In view of the dissent, this case will likely be appealed to the Appellate Division, First Department.  If the law were applied as written, the AT's decision would be reversed for the reasons noted by the trial judge and the dissenter.  But, we think it is much more likely that the AD will not wish to touch this political "hot potato" with a ten-foot pole and will allow the dismissal to stand.  (How likely is it that the AD will want to be perceived as relegating a troubled man to a life of homelessness?)

Any wagers?

For a copy of the Appellate Term's decision in TOA Constr. Co., Inc. v. Tsitsires, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_26509.htm

For a copy of the underlying Civil Court decision, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2005/2005_25268.htm

Posted by Lucas A. Ferrara, Esq. at 8:26 AM | Permalink | TrackBacks (0) | Comments (0)

For some three decades Eva Schlesinger enjoyed her below-market, rent-regulated unit, but the "near octogenarian" recently put her tenancy in jeopardy due to an "escalating pattern" of disruptive conduct. Apparently, Ms. Schlesinger was a "nuisance."

Nuisance is typically a behavioral problem that manifests itself in an ongoing or repetitive fashion and is conduct which disrupts the health, safety, or comfort of other tenants in a building. As our state's highest court has previously observed in Domen Holding Co. v. Aranovich:

To constitute a nuisance the use of property must interfere with a person's interest in the use and enjoyment of land ... The term "use and enjoyment" encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance ... However, not every annoyance will constitute a nuisance ... Nuisance imports a continuous invasion of rights -- "a pattern of continuity or recurrence of objectionable conduct"....

In Pinehurst Construction Corp. v. Schlesinger, the tenant reportedly triggered the application of the nuisance doctrine by "her recurrent conduct in banging on her apartment ceiling throughout the night and yelling epithets at and otherwise 'hold[ing] dominion over the lives of whomever occupies' the apartment directly above her apartment." And while the Housing Court expressed its "sympathy" for Ms. Schlesinger's plight, it similarly concluded that the tenant's "'vicious' and 'vitriol[ic]' behavior placed an intolerable burden on other building tenants" and ordered Ms. Schlesinger's eviction. On appeal, the Appellate Term, First Department, affirmed that disposition finding that the Housing Court had "appropriately balanced" the rights of all impacted by Ms. Schlesinger's conduct.

In a dissent, Judge Phyllis Gangel-Jacob noted her disapproval of the appeal's outcome, observing, in part, as follows:

The record ... suggests that appropriate medical and psychiatric treatment could have resulted in the necessary modification of any purported behavioral problems. Alternative treatment and the appointment of an Article 81 guardian should have been explored. In this era of special programs and special courts, certainly an appropriate course should have been attempted prior to unnecessarily transforming this elderly, chronically sick, and apparently disturbed tenant into a homeless person. The eviction of the tenant under such circumstances would be unconscionable, and the court or the landlord or both should have referred the matter to Protective Services for Adults, which would undoubtedly have proceeded to petition the court for the appointment of an Article 81 community guardian so that psychiatric and medical therapy could have been sought, even over the tenant's objection. Mild medications suitable for geriatric use often can modify behavior dramatically, which is what appears necessary in this case.

Since appellate precedent has previously suggested that it our state's "public policy" to rigorously protect the rights of the "mentally infirm," we respectfully note our agreement with the dissent's analysis. Typically, when a litigant appears to be "incapacitated" or to lack the ability to fully appreciate the seriousness of the allegations proffered and/or is incapable of interposing a defense to the litigation, a "guardian-ad-litem" may be appointed (at any stage of the litigation) to safeguard that individual's rights and interests. It is unclear to us why that well-entrenched policy was ignored in this particular instance.

As the dissent suggested, a tenant's unorthodox behavior may be precipitated (in whole or in part) by a medical or psychiatric condition. By way of example, according to the American Psychiatric Association, 3% of all men, and 1% of women, suffer from "antisocial personality disorder," a condition marked by a disregard for the consequences of one's actions, such as the pain or suffering that may inflicted upon others. This condition is typically marked by the existence of three (or more) of the following elements:

failure to conform to social norms; deceitfulness; impulsivity or failure to plan ahead; irritability and aggressiveness; reckless disregard for one's safety or that of others; consistent irresponsibility; and/or, lack of remorse.

[See, The Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, published by the American Psychiatric Association]

Whether Ms. Schlesinger suffered from this or some other medically recognized affliction, is left unresolved. Rather, the majority's opinion notes, in a dismissive and conclusory manner, that:

The concerns raised by the dissent over the appointment of a guardian or the development of some (unspecified) "[a]lternative treatment" plan for the tenant were not raised by tenant or her counsel either below or on appeal, and there is simply no basis in the existing record to conclude that any such course of action, even if warranted, would remedy the long-standing, acute problems posed by tenant's aggressive, antisocial behavior....

The "hopelessness" of any attempt to secure professional assistance or treatment for the tenant, strikes us as legally untenable and facially insupportable, particularly in view of Ms. Schlesinger's impending homelessness.

For a copy of the Court of Appeals's decision in the Domen case, please click on the following link:
http://www.courts.state.ny.us/reporter/3dseries/2003/2003_18779.htm

For a copy of the Appellate Term's decision in the Schlesinger case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26155.htm

We address "nuisance" in the June 2005 issue of our firm's newsletter. For a copy of that publication, please click on the following link:
http://www.finkelsteinnewman.com/June2005Newsletter.pdf

[Note: Ironically, the character Margo Channing (portrayed by Bette Davis) in the 1950 classic film, "All About Eve," undergoes a comparable form of depersonalization, as the aging actress's world slowly deconstructs as a result of the duplicitous scheming perpetrated by Eve Harrington, a young protege (played by Anne Baxter).]

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UPDATE
On March 29, 2007, Ms. Sheslinger's eviction was affirmed by the Appellate Division, First Department.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (4)