My Eviction Trial

Friends, most of you know for the past 16 months I was involved in a nasty trial involving my downstairs neighbor and my landlord, who took her side and served us an eviction notice under the grounds that we violated the Rent Stabilization Code by permitting and causing excessive noise constituting a NUISANCE. Now certainly this is not the first time in my life I have been referred to as a nuisance. But there was no way I was going to fold and run letting this lady and landlord kick me and my family out of my awesome $1,500 rent controlled apt on the Upper East Side of Manhattan. So I decided to fight. I hired a lawyer, Jay Berg from the firm Cornicello & Tendler. The case lasted 16 months, involved a 2 part intense trial in front of a judge, my five year old son testifying and guess what WE WON!! Here are the highlights quoted directly from the Judge's Decision/Order.
Based on the testimony at trial and the court's inspection of the premises, the court concludes that the nuisance did not result from respondents' behavior, but instead was due to a lack of effective insulation against noise between respondents' apartment and their downstairs neighbor. Accordingly, the case is dismissed.
According to Pais ( downstairs neighbor) the Flemings caused excessive and incessant noise by walking, jumping, thumping. bouncing, running, banging and playing musical instruments in their apt. Following the trial the court(judge) made a physical inspection of both apartments. The court stayed downstairs while The Court Officer a 195 -lb, 5'10, 54-year-old man removed his shoes and performed several tasks. he walked normally, he walked heavily, he marched, he stomped, and he jumped in both living room and the bedroom. He also spoke in a normal tone of voice, and he shouted loudly. All the officer's actions were audible downstairs including his normal walking in the living room,which sounded like thumping bass drum, even though respondents living room is covered with carpeting and padding.
Petitioner cites an incident in which Pais heard the Fleming's children playing in the apartment at 7:30am on a Saturday. being awoken on a Saturday morning in unpleasant.But as evidenced by typical Saturday morning television programming,it is not unusual for small children to rise that early. parents have the right to allow their children to play in the privacy of their home, even on a Saturday morning. As courts have recognized,"children and noise have been inseparable from a time whence the mind of man runneth to the contrary."
Even at 7:30am on a Saturday, children playing in their home is not "objectional" conduct that can support a nuisance claim.
Petitioner characterizes the Flemings' children as excessively noisy and rambunctious. Sonic testified at trial. his testimony was particularly enlightening. The boy quietly waited for long hours in the back of the courtroom and at counsel table before and after taking the stand. His demeanor was that of an exceptionally well-behaved,patient and quiet child. He demonstrated to the satisfaction of this court this he is not loud or agitated. To the contrary, Sonic is one of the most quiet children the court has ever met.
The noisy conditions in apartment 3-D are not the result of the respondents' behavior, but are due to the condition and construction of the post-war building itself. Noise travels freely through the floor between apartments 3-D and 4-D...That almost every sound made in apartment 4-D is audible from apartment 3-D does not elevate the otherwise innocuous conduct of the Flemings to that of objectionable conduct constituting a nuisance.
The Flemings have done everything reasonable to cure the alleged noise problem. Neither the lease nor the rent Stabilization Code requires an upstairs tenant to walk on eggshells.
Respondents are blameless for the noise of which they stand accused.
The petition is dismissed.
So my friends what really happened is Sonic won the case for us, his testimony was amazing and the judge couldn't take his eyes off him. Now we wait for our legal fees which total $42,000. Overall it was a great experience which allowed me to be actively involved in my own defense. It was my idea to have the boy testify, I learned about the court system and most important we won the damn thing and spanked our landlord hard. The lesson: don't let authority push you around, and sometimes the little guy wins out in the end.. G-d Bless. Mark