Dubin v. Glasser

The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, were read on this motion to/for INJUNCTION/RESTRAINING ORDER. DECISION ORDER ON MOTION Plaintiff moves by order to show cause for a preliminary injunction directing and ordering defendant to cease his nuisance activities in his apartment above plaintiffs apartment, to comply with their cooperative building’s house rules, and to refrain from activities that deprive plaintiff of his quiet enjoyment of his home. Defendant cross moves to dismiss the complaint pursuant to CPLR 3211 on the grounds that there is pending proceeding in Housing Court and the complaint fails to state a cause of action. BACKGROUND Plaintiff states in his affidavit in support of the order to show cause that that he suffers from late stage cancer and that he purchased his apartment (without stating when) because the building is quiet but that in March 2020 when the pandemic shutdown New York City he became aware of his upstairs neighbor. Plaintiff alleges that defendant causes loud noises at all hours of the day and night because apparently there is no carpeting on the hardwood floors. The worst time according to plaintiff is from 11:00 pm to 8:00 am. Plaintiff speculates that the noise comes from a chair rolling back and forth and some type of machine possibly a shredder. Plaintiff further complains that there is nowhere in his apartment he can go to escape the noise and that the amount of noise increases after he complains to the doormen in building. Plaintiff acknowledges calling the police to complain about the noise coming from defendant’s apartment (NYSCE Doc No 12). Defendant does not dispute that he has hardwood floors and states that in response to the order to show cause and at the court’s suggestion, he purchased a high-quality floor protector to place under his desk chair. Further defendant states he is usually in bed by around 11 pm and therefore not making noise all hours of the night. Finally, defendant admits that he uses a small paper shredder at most twice a day for less than a minute each time but never at night (Defendant’s affd NYSCEF Doc No 20