61 West 62 Owners Corp. v. CGM EMP LLC

• Decision Date: 24 August 2010
• Citation: 906 N.Y.S.2d 549,77 A.D.3d 330
• Parties: 61 WEST 62 OWNERS CORP., Plaintiff-Appellant, v. CGM EMP LLC, et al., Defendants-Respondents, The Chetrit Group LLC, Defendant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 549

77 A.D.3d 330

61 WEST 62 OWNERS CORP., Plaintiff-Appellant,

v. CGM EMP LLC, et al., Defendants-Respondents,The Chetrit Group LLC, Defendant.

Supreme Court, Appellate Division, First Department, New York.

Aug. 24, 2010.

Wolf Haldenstein Adler Freeman & Herz LLP, New York (Christopher Cobb of counsel), for appellant.

Windels Marx Lane & Mittendorf, LLP, New York (Bruce Bronster, Gregory J. Kerr and Joseph Abt of counsel), for CGM respondents.

Cozen O'Connor, New York (Michael C. Schmidt and Menachem J. Kastner of counsel), for West 63 Empire Associates LLC, respondent.

PETER TOM, J.P., JAMES M. CATTERSON, KARLA MOSKOWITZ, LELAND G. DeGRASSE, JJ.

CATTERSON, J.

The plaintiff is the owner of a residential cooperative apartment building. On or about June 10, 2008, the defendants began to operate a bar on the rooftop of a 12-story building adjacent to the cooperative. Less than a year later, the plaintiff commenced this action, alleging that the defendants "play or permit to be played music at extremely loud levels," thus tormenting the cooperative's residents whose apartments are near the bar. The plaintiff also alleged that the pounding and other noise often continues until 3 a.m.

The plaintiff contended the defendants created a nuisance that degraded the residents' quality of life and diminished their property values. The plaintiff sought a permanent injunction to prohibit the congregating of persons in the non-enclosed areas of the rooftop, as well as the emanating of noise at unlawfully loud levels in violation of the New York City Noise Control Code. The cooperative further asked for an award of money damages for the extreme nuisance created, should the court decide that an adequate remedy existed at law.

On May 26, 2009, the plaintiff moved by show cause order for a preliminary injunction prohibiting the bar's use of the openroof deck as well as the excessive noise attendant thereto. In support of the order to show cause, the plaintiff submitted affidavits from nine residents of the cooperative describing the disturbances they experienced, the steps they had taken to try to deaden the noise, and the complaints they made to defendants and to the City.

The plaintiff also submitted an affidavit from a professional engineer who stated that the plans filed with the Department of Buildings (hereinafter referred to as the "DOB") show that the bar was to operate almost entirely as an enclosed structure with only a small open area on the west side of the building, the area farthest away from the cooperative. The engineer maintained there should be no use of the east terrace, the area closest to the cooperative. Furthermore, he stated that the bar was operating without a certificate of occupancy, that the area lacked sufficient live load capacity, and that its occupancy exceeded that set by the DOB with insufficient egress.

The plaintiff also submitted an affidavit from an acoustical consultant who set up sound-measuring equipment in apartment 16M of the cooperative over a period from Thursday to Sunday, April 16-19, 2009. The consultant reported that the noise level inside the apartment from the music played at the bar consistently exceeded 66 decibels,¹ which, in effect, was100 times more intense than the legal limit of 45 decibels, and that such levels were achieved at times including 11:28 p.m. on Thursday, April 16, and 12:34 a.m. on Saturday, April 18. The consultant also stated that the sound did not come from traffic or other outside sound, and that it was clear to him that the bar had not installed sufficient soundproofing on its premises.

Jeffrey Chodorow, a member of defendant CGM, submitted an affidavit stating that the bar consists of three sections: an open-air east terrace, a smaller west terrace with a retractable roof that is opened when weather permits, and a completely enclosed indoor central area. Music is played in the central and west terrace sections during the hours of operation, Sunday through Wednesday from 5 p.m. to midnight, and Thursday through Saturday from 5 p.m. to 4 a.m., and on the east terrace until 11:30 p.m. on weekdays and 12:30 a.m. on Fridays andSaturdays, as an accommodation to the cooperative's residents. Chodorow contended that although the bar's liquor license contains no such restrictions, patrons are asked to vacate the east terrace after those times, and those who go there to smoke are reminded by security to talk softly and stay as far away from the cooperative as possible. Although the temporary certificate of occupancy had expired, all work required to renew it was done, and no violations were issued. Furthermore, Chodorow asserted that the bar has never been issued any violations for noise by the New York City Department of Environmental Protection (hereinafter referred to as the "DEP").

On May 26, 2009, the parties appeared for oral argument. The defendants reiterated that despite numerous complaints and visits from City agencies, no violations were ever issued. They also questioned the efficacy of the cooperative's acoustical consultant's test, inasmuch as he had left his equipment in the control of the tenant. The defendants speculated that the tenant could have moved the equipment or put a radio on or near it, and they noted that if forced to close down, they would be unable to conduct their own testing. The plaintiff's counsel responded that the plaintiff did not want to shut down the bar, but just wanted it to comply with the noise code.

The IAS court denied the plaintiff's request for a temporary restraining order, and ultimately a preliminary injunction, noting that the plaintiff had not demonstrated a likelihood of success on the merits of the private nuisance claim, and that DEP had never issued any violations to the bar. It found that the plaintiff's right to enjoin the operation of the bar was neither clear nor practically beyond dispute, as the issue of violation of the Noise Control Code was in stark dispute. Weighing the equities, it found no precedent for granting relief that would upset the status quo and potentially hurt the bar's business. The court noted that while it was mindful of the distress and discomfort described by the residents, the cooperative had not met the requirements for a provisional remedy interfering with the operation of a bar. For the reasons that follow, this was error, and the failure to enjoin the excessive noise was an abuse of discretion.

On appeal, the plaintiff contends that the court cited the correct standard applicable to claims of private nuisance, but failed to apply it, in that the defendants' invasion of the plaintiff's interests in the use and enjoyment of its property wasindeed unreasonable. It further contends that the court should havefound it entitled to a preliminary injunction, for the same reason.

At the outset, we note that the elements of the common law cause of action for a private nuisance are: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act". Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 172-174, 362 N.E.2d 968, 971-972 (1977).

It is wholly immaterial to maintaining an action for nuisance at common law whether or not DEP, or indeed any municipal authority, has issued noise ordinance violations. The plaintiff has adequately pleaded all the necessary elements, and the only question is whether or not the plaintiff is entitled to the relief afforded by a provisional remedy. The dissent's position that "[h]owever the cause of action is denominated, relief must be predicated on defendants' violation of the New York City Noise Control Code" is unsupported by citation to any authority whatsoever. To adopt such a view would make any common law cause of action dependent on the existence of an administrative code violation, a construct alien to New York law. Similarly, the dissent's extended discussion of the Noise Control Code is simply inapplicable to a cause of action sounding in nuisance.

In order to obtain a preliminary injunction, the plaintiff was required to put forth evidence demonstrating "(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in [its] favor." Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 45, 532 N.E.2d 1272 (1988).

Through the affidavits of the residents, the plaintiff demonstrated that the interference was substantial in that the noise greatly exceeded the maximum allowed by ordinance. The cooperative also demonstrated that the noise was intentional and caused by another's conduct because it was a product of the bar's use of the outside roof deck in furtherance of its own commercial purposes. The noise level, as well as the time of night, also established the third and fourth elements of the cause of action, that the interference was unreasonable and affected the residents' right to use and enjoy their respective apartments. See e.g., Zimmerman v. Carmack, 292 A.D.2d 601, 602, 739 N.Y.S.2d 430, 431 (2d Dept.2002) (allegations defendants' "outside stereo playing so loudly that the police were required to come and disconnect the wires [...] adequately pleaded a cause of action sounding in nuisance").

In opposition, the defendants offered nothing but the largely identical affidavits of Chodorow and the bar manager, which contained inadmissible hearsay, their own estimates that the music was not loud, and allegations that the residents failed to call and complain about the noise. Contrary to the finding of the IAS Court, the plaintiff has thus demonstrated a likelihood of success on the merits. The dissent's contention that the cooperative's expert failed to adhere to "test conditions approved by the Commissioner of Environmental Protection" is...