48 Misc. 2d 1014 | N.Y. City Civ. Ct. | 1966
This is a proceeding to remove the respondents from the premises of the petitioner upon the ground that they are objectionable tenants. The applicable clauses in the lease between the parties contain the following: “15. No Tenant shall make or permit any disturbing noises in the building by himself, his family, servants, employees, agents, visitors and licensees, nor do or permit anything by such persons that will interfere with the rights, comforts or convenience of other tenants.” Paragraph 9 of said lease states in part as follows: “ 9. Tenant and Tenant’s family, servants, employees, agents, visitors, and licensees shall observe faithfully and comply strictly with the Rules and Regulations set forth on the back of this lease, * * # Tenant agrees that any violation of any of said Rules and Regulations by Tenant or by a member of Tenant’s family, or by servants, or employees, or agents, or visitors, or licensees, shall be deemed a substantial violation by Tenant of this lease and of the Tenancy.”
The landlord alleges that the noise from respondents’ apartment is destroying the peace and quiet of the new tenants immediately underneath them. The claim is and the proof attempted to establish that the noise is of such a character as to constitute a violation of the provisions of the lease set out above. The respondents have been in possession over two and one-half years and their lease runs until December 31, 1966. It is sig
The respondents are a young couple with two small children, ages four and two. It was admitted by them that the children do run and play in their apartment, but they say they keep shoes off their feet when at home. The father says that he does walk back and forth at various times when at home, particularly to the refrigerator during the TV commercials and, also, to other areas of the apartment as necessity requires, but denies that he does this excessively or in a loud or heavy manner. They maintain that whatever noises emanate from their apartment are the normal noises of everyday living.
The tenants below, the Levins, are a middle-aged couple who go to business each day. They are like many others of our fellow citizens, who daily go forth to brave the vicissitudes of the mainstream of city life. At the end of the toilsome day, like tired fish, they are only too happy to seek out these quiet backwaters of the metropolis to recuperate for the next day’s bout with the task of earning a living. They have raised their own child and are past the time when the patter of little feet overhead is a welcome sound. They say they love their new apartment and that it is just what they have been looking for and would hate to have to give it up because of the noise from above. Mrs. Levin is associated with the publisher of a teen-age magazine and realizes that she is in a bind between her desire for present comfort and the possible loss of two future subscribers. She consequently hastens to add that she loves children and has no objection to the Sokolows because of them — that it is solely the noise of which she complains. So we have the issue.
The landlord’s brief states that in its view, the conduct that is even more objectionable than the noise, is the “unco-operative attitude of the Tenants ”. This observation is probably prompted by testimony to the effect that Mr. Sokolow, one of the upstairs tenants, is reported to have said “ This is my home, and no one can tell me what to do in my own home ’ ’. This is a prevalent notion that stems from the ancient axiom that a man’s home is his castle.
The difficulty of the situation here is that Mr. Sokolow’s castle is directly above the castle of Mr. Levin. That a man’s home is his castle is an old Anglo-legal maxim hoary with time and the
Weighing the equities in this difficult controversy, the court finds that the Sokolows were there first, with a record as good tenants. The Levins underneath seem to be good tenants also. This was attested to by the superintendent who was called upon to testify. He made the understatement of the year when he
In his own crude way the superintendent may have suggested the solution to this proceeding. This is a time for peace on earth to men of good will. As the court noted above, they are all nice people and a little mutual forbearance and understanding of each other’s problems should resolve the issues to everyone’s satisfaction.
The evidence on the main question shows that in October the respondents Sokolow were already in a fixed relationship to the landlord. The Levins, on the other hand, were not — their position was a mobile one. They had the opportunity to ascertain what was above them in the event they decided to move in below. They elected to move in and afterwards attempted to correct the condition complained of. Since upon the evidence the overhead noise has been shown to be neither excessive nor deliberate, the court is not constrained to flex its muscles and evict the respondents. Upon the entire case the respondents are entitled to a final order dismissing the petition.