Private Nuisance: Remove That Cooling Tower

May a building owner maintain a cooling tower on the roof of its building which interferes with the view of the residents of the neighboring building? That was the question in First Avenue Owners Inc. v. Valentina Enterprises, LLC and J.A.V. Food Corp., where an easement had been recorded which limited the dimensions of any tower to be installed. (Note: the plaintiff was represented by our firm.)

First Avenue Owners, the plaintiff, owned a 20-story co-op building at 333 East 79th Street in Manhattan. Defendant Valentina Enterprises owned a five-story commercial building immediately to the south at 1513 First Avenue. The buildings shared a wall, and all of the co?op’s south-facing windows overlooked the roof of the commercial building. At the time the action started, defendant J.A.V. Food Corp. operated a grocery and food store in the commercial building.

In 1961, the building’s previous owner was granted a permanent easement of unrestricted light, air, and view above the commercial building. The easement specified the exact location and size of any cooling tower that could be placed on the roof of the commercial building. In 2003, Valentina bought the commercial building. Its title policy identified the easement as an exception to the title.

In 2005, Valentina installed a new cooling tower on the roof of its building. The co?op alleged that the cooling tower’s location, height, and volume violated the terms of the easement and obstructed the view of the co-op’s residents who had south-facing windows on the sixth and seventh floors. The co?op also argued that the cooling tower generated noise at levels exceeding the New York City Administrative Code and that it emitted bursts of fumes and hot air. The complaint asserted causes of action for a permanent injunction compelling the defendant to remove the cooling tower; for a declaration that the defendants were in violation of the administrative code concerning the noise; and for injunctive relief based on private and public nuisance. The co?op moved for summary judgment and the defendants moved to dismiss the complaint.

To obtain summary judgment, the defendants had to tender proof that would establish the facts sufficiently to warrant judgment in their favor as a matter of established law. To defeat a motion, the opposing party had to show that a trial was needed. For the co-op to obtain a permanent injunction, it was required to show the present or imminent violation of a right; that it had no adequate remedy at law; that serious and irreparable injury would result if the injunction were not granted; and that the equities were balanced in its favor.

The court found that the commercial building was subject to an easement, the validity of which defendants did not dispute. The easement provided that its purpose was to allow the co?op building “unrestricted light, air and view” over the commercial building. The easement obligated the commercial building owner “not [to] do or suffer to be done any act or acts on [its parcel] by which the light, air or view of the windows in [the co?op building] . . . are obstructed or by which the said balconies, windows and air conditioning louvers [of the co?op building] may be adversely affected.”

The easement specified the location of the roof on which a cooling tower could be installed (i.e., so that it would block as little view as possible) and that its volume would not exceed 250 cubic feet, “exclusive of supports.”

The court reviewed the findings of the parties’ experts and determined that it was undisputed that the cooling tower was located ten feet closer to the center of the roof than permitted by the easement (thereby blocking more light to the residents of the co?op building). The court also reviewed the experts’ disparate findings concerning the volume of the cooling tower. According to the co-op’s expert, in June 2005, the cooling tower measured 257.5 cubic feet. In November 2008, the tower measured 354.4 cubic feet, which significantly exceeded the permitted 250 cubic feet.

The defendants’ expert argued that in December 2008, the tower measured 344.7 cubic feet, but that this measurement included a removable baffle which measured 137.88 cubic feet and which was installed “for the comfort of the neighboring building.” According to the defendants’ expert, the basic unit, without the removable baffle, was only 250 cubic feet. Therefore, the defendants argued, the cooling tower was in compliance with the easement. The court found, however, that the easement expressly provided that the measurement of 250 cubic feet excluded only supports underneath. Therefore, since the easement excluded only the supports from the calculation of the tower’s total measurement, all of its other parts had to be included. The removable baffle – even if it were installed to reduce noise – had to be included in the calculation of the volume of the cooling tower.

The co-op alleged that the cooling tower generated noise levels which violated the New York City noise control code. The court noted that the noise control code, Administrative Code Section 24-227(a), provides that “no person shall operate or permit to be operated a circulation device in such a manner as to create a sound level in excess of 42 dB(A) when measured inside a receiving property dwelling unit. The measurement shall be taken with the window or terrace door open at a point three feet from the open portion of the window or terrace door.” In September 2005, the co-op’s expert had measured the sound level to be between 64.1 and 64.7 dB(A). The co?op’s expert attempted to take sound measurements again in November 2008, however the cooling tower was not operating. The co?op’s expert explained that, since his last visit, some noise attenuation material had been added to the cooling tower; however, it was his opinion that this was unlikely to reduce the noise level by more than 20 dB(A) (the reduction necessary to comply with code).

The defendants’ expert visited the buildings in January 2009. He claimed that he could not take sound measurements because of loud background traffic and construction noise on the corner of East 79th Street and First Avenue. He claimed that he measured the noise levels in October 2005, but did not reveal his findings. He asserted that, in January 2009, the cooling tower was inaudible and questioned the findings of the co-op’s expert on the assertion that it was impossible to take measurements because of high traffic noise.

The defendants also provided a memorandum by an engineer, dated March 2005, before the cooling tower was built. The engineer said that the cooling tower with sound attenuation materials would not violate the administrative code. The court, however, disregarded the memorandum because it was not presented in admissible form (i.e., it was merely a memorandum). The court found it significant that the engineer’s memo did not offer any actual measurement of sound levels and concluded that it was merely speculative.

The co-op submitted reply papers containing documents from the New York City Department of Environmental Protection (DEP) that showed that, in 2006, DEP received many complaints about the noise generated by the cooling tower. In June 2006, DEP determined that the sound level was 65 dB(A), which the court noted was higher than the level found by the co?op’s expert. Based on the evidence presented, the court determined that the co-op established that the cooling tower generated noise at levels which exceeded the limits imposed by the administrative code.

The co?op also alleged that the cooling tower’s emission of high noise levels constituted a private and public nuisance. The court explained that to demonstrate a private nuisance, the plaintiff had to show “(1) an interference substantial in nature; (2) intentional in origin; (3) unreasonable in character... with a person’s property right to use and enjoy land... caused by another’s conduct in acting or failing to act.” The court reviewed the record and determined that the size and location of the cooling tower, as well as the noise level, adversely affected the quality of life of the residents of the co?op building, especially those on the sixth floor whose windows faced south. The noise levels exceeded the limits set forth in the administrative code. The court held that the cooling tower constituted a private nuisance.

The court also discussed the co-op’s claim (made in its complaint but not argued on the motion) that the cooling tower constituted a public nuisance. Quoting from a case decided by the Court of Appeals (New York’s highest court), the court explained that a public nuisance “consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all ... in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons.” The court also noted that an individual could only maintain an action for public nuisance when she suffered special damages from the nuisance. The court determined that the cooling tower was not a public nuisance as there was no showing of any interference with the public.

In sum, the court concluded that the co-op demonstrated that the cooling tower violated the terms of the easement in that it blocked light, air, and views of some of the co-op’s residents. The cooling tower’s sound-attenuating materials and devices brought its total measurements significantly over the 250 cubic foot limit. The court also found that the co-op demonstrated that, without the sound-attenuating materials, the cooling tower emitted sound levels which exceeded the limits of the administrative code and that the materials did not bring the sound to within acceptable limits. Consequently, the cooling tower violated the requirements of the easement and/or the administrative code, regardless of whether the removable baffle was used.

Defendants cross-moved to dismiss the complaint on the theory that the co-op’s complaint did not allege “lack of adequate remedy at law” or “irreparable harm.” The court found, however, that the co?op pleaded and demonstrated that it did not have an adequate remedy, that it suffered irreparable harm as a result of the tower’s blocking the light, view, and air of some of the co-op’s residents and that the cooling tower emitted excessive noise. In addition, the court explained that in the absence of an injunction, the co-op could have lost its rights under the easement by virtue of defendants’ adverse position of a portion of the roof. The co-op also demonstrated the existence of an ongoing violation of its right, the absence of an adequate remedy at law, immediate and irreparable injury, and that the equities balanced in favor of the co?op.

The court granted the co?op’s motion for an injunction, denied the defendants’ cross motion and ordered that the cooling tower be removed, replaced or modified so that it complied with the easement and that all work be “completed absolutely no later than March 1, 2010.”

Comment: Typically, there is no protected right to light, view, or air. An exception exists if there is a recorded easement, such as the one in this case. It is for this reason that we recommend that those who are purchasing apartments that overlook the roof of an adjacent building perform due diligence to determine whether there is a recorded easement for light and air. Without such an easement, the owner of the adjacent building may be able to install mechanical equipment, a roof deck, or even additional stories (in which case “lot line” windows may have to be closed), provided that all laws are obeyed.

When there is a recorded easement for light and air, however, its terms must be strictly followed. Courts may allow a minimal variance (such as if the volume were 253 cubic feet rather than the permitted 250), but in this case, the defendants’ failures to comply with the easement were substantial. In addition, even though the last sound measurements were taken in 2005 and 2006, the court determined that the cooling tower violated the noise control code. We believe that this ruling was made in part because the defendants’ failed to demonstrate – through expert testing and affidavit – that decibel levels 20 points above those permitted had been reduced at any time since 2006.

The court also concluded that there was a private nuisance because there was a substantial, intentional, and unreasonable interference with the co-op residents’ right to use and enjoy their apartments.

In opposition to the co-op’s motion, the defendants attempted to exert “form over substance” by arguing that certain “key” words were not contained in the co-op’s complaint. However, the court relied upon what the co-op actually demonstrated in its motion papers.

Attorneys:
For Plaintiff: Stroock & Stroock & Lavan LLP
For Defendants: Law Offices of Max D. Liefer PC
Disclosure: The authors’ firm represented the plaintiff in this matter.