Turn Down the Music

Read this article in the digital edition.

When shareholders complain, may a co-op obtain an order requiring a neighboring bar to lower its noise, even if no city noise violations were issued? That was the question in 61 West 62 Owners Corp. v. CGM LLC, CGM EMP RTP LLC, West 63 Empire Associates, LLC and The Chetrit Group, LLC.

The co-op, 61 West 62 Owners Corp., owns the building at 61 West 62nd Street in Manhattan. It brought an action for private nuisance as a result of the “incredibly loud and unbearable noise” emanating from the rooftop bar on the 12th-floor roof penthouse at the adjacent Empire Hotel. The co-op complained of loud bass-heavy music, amplified DJs, and crowd noise until 3 A.M. The co-op claimed that the decibel levels exceeded the New York City noise code standards. The co-op sought an order that would stop the bar from allowing noise levels that disturbed the occupants of the co-op and would stop patrons from congregating in the nonenclosed portions of the bar during late hours.

The co-op’s residents submitted affidavits attesting to extremely difficult living conditions. They described an inability to relax and extreme difficulty sleeping, which degraded their quality of life. Many also claimed that they made complaints to 311 and the New York City Police Department, which took no action.

The co-op also submitted an affidavit from an acoustical consultant who set up sound-measuring equipment in apartment 16M of the co-op from a Thursday to Sunday in April 2009. The consultant reported that the noise level inside the apartment measured 66 decibels, which was more than the legal limit of 45 decibels, and that the levels were achieved at 11:38 P.M. on Thursday and at 12:34 A.M. on Saturday. The consultant stated that it was clear to him that the bar had not installed sufficient soundproofing.

Empire questioned the testing and results, particularly as the equipment was left with the resident of 16M and not controlled by the professionals at all times. Empire claimed the bar was operated in accordance with its certificate of occupancy and that it voluntarily did not permit music on the open-air terrace after 11:30 P.M. Sunday through Thursday or after 12:30 A.M. Friday and Saturday. Empire also asserted that it had contracted to spend $23,000 on upgrades to the stereo system so that the sound could be lowered.

Empire explained that it had received a visit from a local community board wherein representatives of politicians and community board members visited four apartments. This was before the board’s vote on whether to issue a liquor license for a restaurant on the second floor of Empire. Even though bar music was at full volume, the visitors were unable to hear any music. The liquor license for the second-floor tenant was approved. Finally, Empire asserted that the police and fire departments visited the bar on numerous occasions, yet no noise violations were ever issued by any agency.

The New York City Department of Environmental Protection (DEP) is the agency charged with enforcement of the city’s noise code. This was established as a “flexible, yet enforceable noise code that responds to the need for peace and quiet while maintaining New York’s reputation as the city that never sleeps.”

The co-op sought a preliminary injunction. The court explained that in order to obtain an injunction, the co-op was required to demonstrate (1) a likelihood of success on the merits; (2) irreparable injury in the absence of an injunction; and (3) a balancing of the equities in its favor.

To demonstrate private nuisance (and thus that it was likely to succeed on the merits), the co-op had to show that Empire’s conduct was a legal cause of the invasion of the interest in the private use and enjoyment of land and that such invasion was intentional and unreasonable, negligent or reckless, or actionable under the rules governing liability for abnormally dangerous conditions or activities.

The motion court found that the co-op did not demonstrate the elements of private nuisance and therefore did not demonstrate a likelihood of success on the merits. There was no dispute that Empire tried to ameliorate the noise, and the New York City DEP never issued violations to the bar. Weighing the equities, the court found no precedent that would have allowed it to upset the status quo and potentially harm the bar’s business. While the motion court acknowledged the residents’ distress and discomfort, it found that the co-op did not meet the requirements to allow the court to issue an injunction.

However, the matter did not end there. The co-op appealed the decision to an appellate court. The appellate division viewed the evidence differently. It found that it was “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.”

It found that the co-op adequately pleaded all the necessary elements of a claim for nuisance. The appellate court determined that, through the affidavits of residents, the co-op demonstrated that the interference was substantial and that the noise greatly exceeded that which was permitted by the noise code. The co-op established that the noise was intentional and that it was caused by the bar’s use of the outside roof deck for its own commercial purposes. The noise level disturbed the residents’ enjoyment of their apartments.

The appellate court determined that the co-op was irreparably injured because the noise levels were four times the legal limit. Empire offered no proof to rebut this. The residents also submitted affidavits and described a nightly assault on the quiet enjoyment of their apartments.

The appellate court also found that the co-op had established that the balance of the equities tipped in its favor as its residents had the right to enjoy their apartments in peace. There was no evidence that the outside bar, which was used only seasonally, was significant or necessary to the bar’s business. There was also no evidence that the bar required use of the roof deck in the late hours, except as a smoking area for its patrons.

The court found that, if the scope of the injunction were limited to music on the terrace, it appeared it would have had no impact on the bar’s business. Accordingly, it reversed the motion court. One judge dissented, because the DEP had not issued a notice that Empire was in violation of the noise code.

The matter was then heard by New York’s highest court, the Court of Appeals. That court succinctly stated: “The failure of authorities to issue a violation of the New York City Noise Code...by itself, does not preclude the [co-op] from establishing that it is likely to succeed on the merits.” The Court of Appeals then sent the case back to the appellate court to determine whether an injunction should have been issued. The appellate court – approximately two years after the motion court’s initial decision – directed an injunction issue and sent the matter to the motion court to fashion an appropriate remedy.

Comment: This is an important case because it addresses what happens when there is a claim that a party is in violation of a city noise ordinance, yet the agency charged with enforcing the ordinance does not issue a violation. The state’s highest court made very clear in its decision that an injunction may be issued to stop the noise, even if a violation was not issued. While the lower court appreciated the situation of the residents, the judge did not believe that the co-op demonstrated that it was likely to succeed on the merits, i.e., that it would be able to show that Empire’s actions constituted a private nuisance. The appeals court disagreed, in part because of its finding that it was immaterial that a violation of city law had not been issued – even though representatives of the police and fire departments had visited the bar. Finally, this case confirms the long-standing principle that a co-op corporation can pursue an action on behalf of its shareholders.

Attorneys:

61 West 62 Owners Corp. v. CGM LLC, CGM EMP RTP LLC, West 63 Empire Associates, LLC and The Chetrit Group, LLC.

For Plaintiffs:

Wolf, Haldenstein, Adler, Freeman & Herz

For Defendants:

CGM: Windels, Marx, Lane & Mittendorf West 63 Empire: Cozen O’Connor