This paper presents a sample appellant's brief filed in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, on behalf of defendant Sam Most against Breezy Hollow Apartments. The brief argues that chronic, unabated noise from a neighboring tenant, combined with the landlord's complete failure to remedy the situation, constitutes constructive eviction under New York Real Property Law §§ 227a and 235b. Drawing on precedents including Barash v. Pennsylvania Terminal Real Estate Corp. and Dinicu v. Groff Studios Corp., the brief contends that noise pollution's demonstrable harms to physical and mental health rendered the apartment uninhabitable, relieving the tenant of further rent obligations.
Statement of Issues: The issue presented by this appeal is whether noise pollution, left unabated by a landlord, constitutes the type of environmental pollution that can constructively evict a tenant.
Statement of Facts: Sam Most entered into a year-long lease at the Breezy Hollow Apartments. His next-door neighbor, Larry Loud, played loud music constantly. Because of the loud music, Sam Most could not sleep or enjoy other quiet activities in his apartment. Most informed the apartment manager, Lillian Lazy, who did nothing to abate the noise. In addition, Most contacted the police. In response to police visits, the volume of Loud's music would temporarily be lowered. After two months, Most vacated his apartment. Breezy Hollow Apartments brought suit seeking the remainder of the rent due under the parties' contract. Most alleged that he had been constructively evicted from the apartment due to the constant loud noise.
Constructive eviction refers to the concept that conditions in a property can be so poor that they make it impossible for a tenant to continue using the property. The concept of constructive eviction finds support under N.Y. Real Prop. Law §§ 227a and 235b. Under N.Y. Real Prop. Law § 235b:
"In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety." (N.Y. Real Prop. Law § 235b)
Furthermore, under N.Y. Real Prop. Law § 227a:
"Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his or her fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he or she is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender. Any rent paid in advance or which may have accrued by the terms of a lease or any other hiring shall be adjusted to the date of such surrender." (N.Y. Real Prop. Law § 227a)
Under Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970), a plaintiff establishes a claim for constructive eviction if he can demonstrate that he was deprived of the material use and enjoyment of the leased property. (Barash v. Pennsylvania, 26 N.Y.2d 77, at 83.) Although constructive eviction can involve actual physical removal from the premises, such removal is not necessary; a tenant must simply show that the premises were unusable for their intended purposes, which caused the tenant to abandon them. (Dinicu v. Groff Studios Corp., 257 AD2d 218, 224 [1st Dept 1999].) Therefore, if Most can demonstrate that Loud's music prevented him from putting his apartment to its intended use — as a residence — and that he abandoned the apartment for those reasons, he can establish constructive eviction. In order to determine whether Loud's music prevented Most from using his apartment as a residence, one must examine the issue of noise pollution.
"Noise effects on health; landlord's failure to act"
Constructive eviction occurs when a landlord refuses to make a building habitable for a tenant. Because of the harmful effects of excessive loud noise on physical and emotional health, noise is the type of environmental pollution that can render a building uninhabitable. Because Breezy Hollow Apartments refused to make his apartment habitable, Sam Most was constructively evicted from his apartment and should be found not liable for the rent remaining under his contract.
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