1250 Broadway, 27th Floor New York, NY 10001


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:
For a copy of the Appellate Term's decision in the Schlesinger case, please click on the following link:
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:
[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).]
On March 29, 2007, Ms. Sheslinger's eviction was affirmed by the Appellate Division, First Department.