Noise Nightmare

A member of a co-op board has a sworn duty to look out for the best interests of the entire co-op. But that person, as a shareholder, also has a perfectly natural desire to look out for his or her own personal comfort and peace of mind. When these two interests – the collective versus the individual – come into conflict, the result can be devastating. Just ask Jane Denny.

Until recently, Denny, a 46-year-old, self-employed graphic artist, was president of the co-op board at the Hampshire Apartments in Forest Hills, Queens. This handsome, six-story brick building has 67 apartments on the upper floors, 11 commercial enterprises on the ground floor, and is actually called a “cond-op.” A cond-op is a building that is a condominium, usually with one or more commercial units and one residential “unit,” which is actually a co-op with shareholders. As a result, the shareholder owns shares in a co-op that owns the residential unit of a condominium. The sponsor, Aaron Sirulnick, also owns 17 apartments in the building and holds one seat on the co-op’s seven-member board.

Denny moved into a one-bedroom, second-story apartment in 1995. It sat directly above a diner, and for years this work-at-home artist was happy. She joined the co-op board in 2003, just before the co-op won a lawsuit that wrested majority control of the board from the sponsor.

“We fired the management company and got it more into the shape of a true co-op,” Denny says, adding that the original board had been a “puppet” for Sirulnick. “But the central problem still remained: we have no control over those commercial properties, and we don’t have the option to change the [condo’s] bylaws.”

The severity of this problem didn’t become apparent until April 2005, when the diner beneath Denny’s apartment closed and workers came in to renovate the space for a Japanese restaurant called Chikurin.

“They were a nuisance tenant from the minute they took possession,” says Denny, a Brooklyn native. “They were in there at 6 AM every day doing construction. No holidays, no weekends, no noise code.”

After eight months of renovation, the restaurant finally opened its doors on December 11, 2005, a day Denny will not soon forget. “I was sitting on my couch watching TV,” she recalls. “There was a screech and a bang, then the whole building started to shake.”

The culprit was the restaurant’s new heating, ventilating, and air conditioning (HVAC) system, which was anchored to the floor joists in Denny’s apartment, according to an engineer’s report commissioned by the board. Denny claims her apartment shook 12 hours a day, seven days a week, and adds that she began suffering from migraine headaches, insomnia, and anxiety. Her nightmare was now in full gallop.

She deluged the Department of Buildings (DOB) with complaints, but those were “either unsubstantiated upon inspection, or the inspector could not gain access to inspect the unit,” according to DOB spokeswoman Carly Sullivan.

The co-op board, sensitive to Denny’s plight, filed a lawsuit against the sponsor. Sirulnick promptly countersued, charging that Denny had coerced the board into wasting co-op funds on the suit. (Both Denny and Sirulnick recused themselves from board votes on the matter. Sirulnick declined a request to be interviewed for this article, and the other five board members either declined interview requests or failed to return a reporter’s phone calls. The management of Chikurin Japanese restaurant did not return phone calls.)

Frustrated, Denny contacted television’s “New York 1 for You” reporter Susan Jhun, who came to the apartment on May 14, 2007, with a camera crew to document Denny’s complaint. The crew taped footage of bowls of water vibrating violently. Jhun said on-camera: “You can see from the constant ripples in bowls of water how strongly and steadily her apartment shakes.”

Meanwhile, the co-op’s other board members were having second thoughts about fighting one of their own on behalf of one of their own. A week after New York 1’s visit – but before the segment aired – the board held an emergency meeting and voted to drop the lawsuit against Sirulnick.

In meeting notes sent to all board members, board secretary Jason Sarnoff explained the rationale for dropping the lawsuit: “In the spirit of continued cooperation that we have begun to build in recent months, we look forward to working productively with Aaron Sirulnick… Regarding the vibrations that continue to disturb our board president, we unanimously agreed to request that [Sirulnick] continue to request and encourage [Chikurin restaurant] to install some additional vibration dampeners over and above the minimum required in the building code in order to reduce even more any vibrations that may be felt in the apartment above.”

Denny was devastated. “This decision meant to me that they had been convinced that I was fabricating the complaint,” she says. “It was an insult to me personally and as president of the board.”

Abbey Goldstein, the board’s lawyer, believes the majority of board members simply lost the stomach for a protracted – and costly – war of attrition. “There was a history of contention between Sirulnick and the board,” Goldstein says. “With Jane it was pretty simple. The board felt when we initiated the legal action that Jane was suffering. Sirulnick basically was adamant and made it into a war. He dragged it out and the legal fees became quite substantial.”

Soon after the board’s decision, a DOB inspector named Michael Geraci determined that the restaurant’s HVAC unit had been incorrectly installed and he issued a violation to Sirulnick’s Seminole Realty, according to the DOB. Until Sirulnick could prove that the unit had been properly installed, he was ordered to shut it off. The unit remained on.

At a hearing before the Environmental Control Board on August 7 of this year, the violation was dismissed on a technicality, according to the DOB. It had been written to the wrong owner – to Sirulnick’s Seminole Realty, not to Sirulnick’s Boulevard company.

Inspectors revisited the building four weeks later and issued two new violations to Boulevard: one for incomplete plans that did not detail the installation of the HVAC unit; another for failing to install vibration eliminators. A hearing on these violations was set for October 30. At the co-op’s annual meeting on October 17, Denny declined to run for reelection. She’d had enough.

“I find being on the board’s been an entirely thankless proposition,” she says. “I feel I’ve lost more than I’ve gained including a couple of friends. They were not willing to stand by me.”

But the true villain here may be that seemingly innocent little word: cond-op. “If the board had any authority over the restaurant, we simply would have told him to take [the HVAC unit] down,” Denny says. “But we don’t have authority. It leaves us at the mercy of the sponsor. And it’s not just me. The situation effects the entire co-op. How long before there’s an HVAC unit under every second-story apartment? How long before there are neon lights shining in our windows? It undercuts all of our rights.”

Goldstein, the board’s attorney, agrees. “The board has very little recourse or power to regulate which commercial tenants come in,” he says. “In a cond-op, there is huge protection for the sponsor.”

In early November 2007, Denny’s apartment was still vibrating.