A Condo Board's Inaction on Noise Exposes Loopholes in the Law

The issue, says Cummings, 59, a teacher, arose soon after she bought her condo in 2008. Through her bedroom's wooden floors came a low hum she traced to the boiler room for that section of apartments, which house heating elements consist of a hot-water system supplied by constantly running water pumps near the boiler. She described the sound to the Staten Island Advance as "this hum, this racket. It sounds like a [ratcheting] motor."

She lived with it until 2010, when it finally became intolerable for her, and she contacted the condo board for help. But until this past spring the board, inexplicably, refused to remediate the problem. Why? Building manager Kevin Liota of Wentworth Property Management, a division of Cooper Square Realty, declined to comment to Habitat, and the previous manager, Linda Romolo, told the Advance in a statement, "We simply reported the matter to the community's attorney." Board members did not return Advance phone calls. Cummings could not be reached by phone today and did not immediately respond to an e-mail.

Statute-to-Noise Ratio

Part of the problem is that the board simply may not have been legally required to do anything, no matter how much it may have been ethically required. A thicket of statutes and case law surrounds co-op and condo noise issues.

The major court decision came with 1995's Nostrand Gardens Co-op vs. Howard, which found a Brooklyn co-op at fault for not having taken "effective steps" to abate the nuisance after a shareholder repeatedly reported "excessive noise emanating from an apartment … throughout the late night and early morning hours." But one attorney unaffiliated with the Foxwood Square issue says the implied warranty of habitability referred to in Nostrand and subsequent cases doesn't apply to condominium boards since there's no landlord-tenant relationship — the way there is in co-ops, which operate under a proprietary lease.

However, Local Law 113 of 2005 does specify that "circulation devices" such as central air-conditioning units on a building's roof or water-circulation devices in a basement cannot create sound above a certain a weighted spec of "42 dB[A]." (For more detail, go to this New York City Department of Environmental Protection page.)

So, in December 2011, Cummings paid to bring in sound engineer Dan Prosseda of the Brooklyn company Sound Control. He confirmed in his report that, "Upon entering the premises, there was a constant humming noise present near the radiators as well as vibration in the piping," and he took measurements in the kitchen, living room and bedroom. He found statistically weighted "A" levels of 35-38 decibels (dB), and noted that the boiler-room pumps "are in compliance with the code." But he also noted that sounds emitted by most electric pumps are at a frequency that the weighted "A" specification doesn't cover — and that in real terms, the noise levels were at a very high 59-63dB.

Moreover, he found that the boiler room didn't appear to show "vibration isolators in the hot water pipes, as well as marginal hanging isolators for the pumps. These would probably isolate some vibration from the building structure but not through the radiator pipes."

Let's Go to the Video

Perhaps because of some combination of that report and Cummings' YouTube channel in which she posted videos of the noise and of a lack of soundproofing in the boiler room, the condo board finally took action earlier this year, paying Galante Home Improvement $1,750 to install QuietRock brand soundproofing, according to a contract Cummings obtained.

As the Advance reported, engineer Prosseda examined the space in April and found less-than-optimal handiwork, such as spaces in the ceiling through which sound could penetrate; improperly installed drywall with gaps; and seams with unfinished taping. The paper wrote that, "Other findings, according to Prosseda, report that some areas could be a fire hazard or violation."

Cummings, in January, turned her bedroom into a storage area and moved her bed into the living room, effectively turning her unit into a studio apartment. Given the low cost of soundproofing — especially compared to the wasted time and effort the board expended and the human cost of Cummings' suffering — it's not unreasonable to hold this as an example of ineffective and even callous board behavior.

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