Activities & Affiliations

New York State Bar Association
New York City Bar
New York County Lawyers Association

Activities & Affiliations

New York State Bar Association
New York City Bar
New York County Lawyers Association

  • Michael Farber

Farber Schneider Ferrari LLP Successful in Dismissing Luxe Building ‘Door-Slamming’ Suit

NYC vertical living is notorious for its crowding clichés. In the City that Never Sleeps, getting some peace and quiet is a learned skill. However high your rent, you’ll endure unending noise, odors, and your neighbors’ quirky schedules and habits. Most New Yorkers adapt their behaviors, accepting apartment life as a mixture of willpower, resilience, and good manners.


Finding harmony under these conditions is a scientific experiment unique to city dwellers. NYC’s unwritten social contract holds that being neighborly is karmic; but while we yearn to not disturb those living adjacently, we all know that while living so proximately we cannot expect to live in silence. And from those few of NYC’s 8 million people who reject this notion, one would expect, at worst, some knocking on walls, notes taped on doors, or awkward elevator stares—but not a lawsuit.

But that was precisely the extreme nightmare recently suffered by FSF clients earlier this year. A neighbor across the hall who runs her psychiatric practice from her apartment, claimed that the sound of our clients’ apartment door closing was disruptive, annoying, threatening, and inappropriate and had caused extensive damages, on top of which she sought $500,000 in ‘punitive’ damages. Imagine being accused that your door slamming has had a ruinous effect on both your neighbor’s psychological state and her ability to do business. You are accused of purposely, forcefully, and continuously slamming your apartment door to “create noise, vibration and tremors” to her apartment with the intent of harassing her.


Such was the recent case of Ozkarahan v. Li et al, an action which FSF recently defended with a successful dismissal. Upon Plaintiff Dr. Ozkarahan filing her lawsuit, two unassuming young professional parents living on Manhattan’s Upper East Side found themselves facing the costly uncertainty of a years-long legal battle about an apartment door. However distasteful your experiences with unpleasant neighbors, it is difficult to conceive of a worse circumstance. One cannot overstate the panic and fear caused by being sued for a half-million dollars, even though the claims are unmerited and do not warrant payment. Following a professional reference to our firm, the defendants selected FSF to defend them against this legal assault.


The suit contained seven distinct causes of action, or claims, arising from seven alternative legal theories or doctrines all arising from purported door-slamming injuries, through which a judge or jury could find the defendants liable: 1) Private Nuisance; 2) Preliminary and Permanent Injunction; 3) Tortious Interference with Business Relations; 4) Negligence; 5) Prima Facie Tort; 6) Intentional Infliction of Emotional Distress; 7) Negligent Infliction of Emotional Distress.


After learning of the neighbor’s suit, our clients had to react quickly. In responding to a civil action complaint, they had two choices: move toward discovery and trial by filing an Answer, or file a Pre-Answer Motion to Dismiss, which seeks to convince the court that even at this early stage, New York law does not support such claims and the Court should not allow the lawsuit to proceed toward trial. Importantly, when considering such a motion, “the complaint must be construed in a light most favorable to the plaintiff and all factual allegations must be accepted as true” and “all reasonable inferences must be drawn in favor of the plaintiff.” Alden Global Value Recovery Master Fund L.P. v. KeyBank National Association, 159 AD3d 618, 621-22 (2018). In making a motion to dismiss and giving the plaintiff such deference, our clients would ask the court to find, at this early stage of the action, that Plaintiff still has no case.


In other words, as applied to these facts, our motion to dismiss had to successfully convince the court that ‘Even assuming that the sound of an apartment door closing is just as loud or disruptive as the plaintiff has alleged, the laws of New York State do not entitle the neighbor to anything under the law.’


Filing a pre-answer motion to dismiss can be a risky gamble. If the motion fails, the defendant is back to the stage of filing an Answer (exactly where he or she was prior to the motion). Following that, the parties are off to the races, as it were: setting off a lengthy (and costly) exchange-of-information evidentiary Discovery process as the case heads to trial (if the parties cannot settle). Yet if the motion succeeds, the plaintiff’s whole case is dismissed without the need for more discovery or trial. As such, it wields considerable powerful for the defendant’s attorney, potentially short-circuiting the entire process, yielding a legal checkmate (subject to any appeal, which is a losing plaintiff’s right in lower courts).


Dismissal is a drastic event with an enormously high bar since it deprives the plaintiff of their day in court. Accordingly, judges are loathe to grant such a motion unless and until--after carefully analyzing both the complaint and the motion seeking to dismiss it--they are quite sure that plaintiff makes out no claim whatsoever for which the law provides recourse, either monetary or non-monetary relief.


Once again, a Court in New York must not dismiss a case unless a moving defendant successfully demonstrates the complete absence of an entitlement to legal relief. Even if the Complaint doesn’t accurately identify or title the correct legal doctrine, a court can still find other entitlement to relief on its own in denying the motion.


FSF LLP strongly believed, based on prior New York cases adjudicating noise-related allegations in apartment buildings, that plaintiff was entitled to nothing; we just needed to convince the court of that. To save our client’s a lot of money, time and heartache, we needed to destroy each and every of plaintiff’s seven claims. Had our arguments failed even as to a single claim, all the time and cost spent investigating, researching, preparing and drafting the motion, would have been spent without gain.


However, following briefing and oral argument, the Court agreed with FSF LLP’s legal arguments and granted our motion, dismissing plaintiff’s entire case. In a detailed, ten-page decision, the Honorable Shawn Timothy Kelly carefully explained why plaintiff had no case under any theory of law, addressing all seven causes of action in turn.


FSF was elated when we learned of the court’s decision. Lead counsel Daniel Schneider, Esq., was especially proud of the result: “the standard is so high, that a dismissal on a seven-count case is almost unheard of. We discussed the uphill battle and odds with the client, who after learning our strategy, wanted to take a shot. We are so pleased that the court saw the righteousness of our defense.”


Shortly after Judge Kelley issued his decision and order, Dr. Ozkarahan filed a notice of appeal, signaling her intention to seek an reversal from an appellate court; however, she never perfected that appeal and her time to do so has now expired. Thus, the decision is final and our clients can move on from this nightmare. FSF sends warm wishes to its clients, the Li family, who have since moved on with their lives, and likely surrounded by kinder neighbors.