Harvey v. Permanent Mission of The Republic of Sierra Leone to the United…

Background

Janet and Joseph Harvey live in a townhouse next to the Permanent Mission of the Republic of Sierra Leone to the United Nations in Manhattan. The Mission owns the neighboring townhouse and uses it as its headquarters. The Mission began renovating and adding two floors in 2019. The Harveys alleged that the unfinished work created dangerous conditions, including flammable debris, structural risks, possible carbon-monoxide exposure, inadequate protections, and water entering their home.

The Harveys asserted common-law claims for negligence, private nuisance, and trespass against the Mission, Empire Group NYC, LLC, David I Montesi, Jules Davis, and Fairfield Construction Associates, LLC. Empire and Montesi were parties to an earlier consent order requiring work on several safety issues, including chimney-extension plans, debris removal, street and roof access, and elevator-shaft protection.

Mission’s Motion to Dismiss

The Mission moved to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. The court denied the motion overall.

The court applied the Foreign Sovereign Immunities Act, the federal law governing when a foreign country or its agency may be sued in United States courts. The parties did not dispute that the Mission was a foreign state, so the Harveys had to show that an exception to immunity applied.

The court held that the commercial-activity exception applied because the complaint connected the Harveys’ injuries to the Mission’s contracts and physical renovation work. The court rejected the Mission’s argument that the case concerned only the governmental activity of operating a diplomatic mission. The court held that the immovable-property exception did not apply because the Harveys’ negligence, nuisance, and trespass claims did not directly seek to establish or encumber property rights.

The court also held that the tort exception removed the Mission’s immunity for the negligence and nuisance claims. For negligence, the Harveys alleged violations of six building or mechanical-code provisions that imposed duties directly on the building owner and could not be delegated to contractors. The court held that the Mission could not claim immunity for alleged violations of those provisions. The court held that eight other provisions imposed only general duties that could be delegated, and the Mission remained immune as to alleged violations of those provisions.

The court concluded that the Harveys adequately stated a nuisance claim because they alleged that the Mission’s negligent conduct interfered with their use and enjoyment of their home. But the Harveys did not adequately plead that the Mission directed or required the alleged trespasses by contractors. The court therefore dismissed the trespass claims against the Mission. The opinion does not state that this dismissal was with or without prejudice.

Diplomatic Premises

The Mission argued that the diplomatic-premises protections in the Vienna Convention on Diplomatic Relations barred the requested injunction. The court held that those protections prohibit physical entry into diplomatic premises without permission, but do not categorically bar every possible injunction. The court stated that relief could potentially be crafted to respect the premises’ protected status.

Contempt and Sanctions

The Harveys sought contempt and sanctions against Empire and Montesi for allegedly violating the consent order. The court found clear and convincing evidence that the defendants missed the order’s deadlines for providing chimney-extension plans and submitting them for approval. However, the court declined to hold them in contempt at that time because the Harveys and their engineer had assumed responsibility for preparing and pursuing approval of the plans, at Empire’s expense, and the defendants could not build the extension without approved plans.

The court found that the Harveys had not provided clear and convincing evidence that required debris had not been removed, that street and roof access was inadequate, or that the elevator shaft remained unenclosed. The court therefore did not hold Empire and Montesi in contempt for those matters. It also declined to impose a daily fine, disgorgement, or attorneys’ fees and costs. The court noted that the defendants represented that they had received no payments subject to disgorgement after September 1, 2021, and that the Harveys had not shown willfulness regarding the missed chimney-extension deadlines.

Preliminary Injunction

The Harveys sought an order requiring safety and construction measures, including work on flashing, the party wall, gutters, chimney flues, and a renovation schedule, along with an independent monitor. Judge Ramos denied the motion for a preliminary injunction.

The court accepted that the Mission could be responsible for certain nondelegable building-code duties, but held that the Harveys had not shown an actual and imminent injury that could not be remedied with money damages. The Harveys remained in the home and had not identified an ongoing interference with their ability to use it. Without proof of irreparable harm, the court held that a preliminary injunction could not issue.

Disposition

The Mission’s motion to dismiss was denied. The Harveys’ motion for contempt and sanctions was denied in part, as described in the opinion. The Harveys’ motion for a preliminary injunction was denied. The court also stated that it did not reach the Harveys’ later letter alleging a rat infestation because that issue had not been fully briefed and the court was not otherwise granting injunctive relief.