A luxury condominium on the Upper East Side is suing an elderly resident for allegedly defecating in its common area pool and shower. The resident, whose continued use of the common facilities will purportedly cause “irreparable injury” to the association, intends to countersue and believes she is being singled out for not tipping.
The Rio Condominium and Spa, located at 304 East 65th Street just off Second Avenue, filed a lawsuit on May 4 seeking to permanently prohibit the defendant from entering or using its fitness center. Rio – through its Board of Managers and represented by its attorneys Schwartz Sladkus Reich Greenberg Atlas LLP – claims that the resident in question has committed such egregious and incurable violations of the condo’s governing documents that she should never step foot in them again.
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“Defendant has created and continues to create disturbances while using the Fitness Center,” the suit states. “Among other things, Defendant screams and makes loud noises while using the gym and pool; she misuses the locker room facilities, including the showers, causing flooding and damage to the locker room; and she refuses to leave the gym and/or pool when her allotted reservation timeslot is over.”
The condo’s motion further alleges that allowing the defendant future access to this amenity “poses a threat to the safety, security, and well-being of the Building’s residents and staff, and to the property of the Condominium and the unit owners.”
The Rio’s management company, Allied Partners, sent the defendant a letter on January 21, 2021 reminding her of the fitness center’s rules and regulations. A second letter was sent on February 19, 2021 — and a final warning letter on April 29, 2021, according to the complaint, both advising that her continued use would be suspended if her behavior continued.
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The Rio contends that the behavior continued despite the three warnings. “On numerous occasions since receiving these communications, [she] failed to adhere to her allotted gym and pool reservation timeslots, failed to wear proper attire in the gym, failed to shower before using the pool, failed to sanitize gym machines after use, and refused to wear a mask as required in designated areas, in violation of the Fitness Center Agreements. She has also created a nuisance by failing to stay in her lane in the pool, spitting in the pool, yelling and making excessive noise while using the pool and gym, and flooding the showers and locker room.”
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On August 23, 2021, the defendant’s use was suspended through October 2021 after she purportedly “defecated in the Fitness Center’s pool and then again in the Fitness Center shower.” However, when the suspension ended, the “prior violative and nuisance behavior and conduct continued,” according to the suit, and the resident was suspended again on February 14, 2022.
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The luxury building claims that, despite the suspension, the elderly resident continues to violate the governing documents and “intrude” into this area of the property. This intrusion is so egregious that, according to The Rio’s Memorandum of Law, “the Condominium will suffer irreparable injury as a result of Defendant’s conduct if the injunctive relief requested herein is denied. The Building and the safety, well-being, and security of the unit owners, residents, and employees are placed at significant risk by Defendant’s conduct.”
The resident in question is Helen Hirsh, an octogenarian and former doctor, who moved into a one-bedroom, one-bathroom apartment in the building last year.
The Daily Beast spoke with Hirsh who reported that she swims against the wall of the pool because she does not know how to swim and is rehabbing a broken leg. She claimed that the allegations are “mostly false” and intends to file a countersuit.
“Asked about the pooping allegation, she responded: ‘No, never,’ then added, ‘Maybe I am getting old. Do they have evidence? Ridiculous, I was a doctor before.'” “Then she alleged that management secretly wanted to get her out of her one-bedroom, one-bathroom apartment in the building, which she moved into last year, because she isn’t a big tipper,” writes the Daily Beast.
Hirsh, who is currently not represented by legal counsel, has about 20 days to file a response. In addition to the permanent ban from the Fitness Center, The Rio is seeking money damages “to repair physical damage that Defendant caused to the Fitness Center and to sanitize potentially harmful conditions Defendant created in the Fitness Center” — and to cover legal fees.
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As for that evidence Hirsh asked about, it appears The Rio has some prospective witnesses lined up. A lifeguard, an account executive for the property manager, and resident manager have all submitted affidavits. However, it is unclear how the condominium knows Hirsh defecated in the pool and shower based on these sworn statements.
The judge initially assigned, the Honorable Arlene Bluth, recused herself from the matter due to her personal affiliation with Ms. Hirsh and The Rio. But the jurist who will preside over the case will have some legal precedent to wrangle with.
The Rio’s attorneys argue that the law regarding the irreparable injury caused by a resident defecating in common areas is well settled. Citing 900 Eighth Ave. Condominium LLC v. Samarelli, No. 157591/2021, 2021 WL 4991393, at *3 (Sup. Ct. N.Y. County, Oct. 27, 2021), the condo’s Memorandum of Law believes “this Court has previously addressed situations like this one where a condominium resident has defecated in common areas of the Building. … the plaintiff submitted evidence of the defendant’s objectionable and nuisance-type conduct which included urinating and defecating himself in common areas of the building. The court found that the complained-of conduct and behavior presented a danger to the safety, health, and well-being of the building’s occupant and therefore constituted an irreparable injury.”
