HOW A BOARD WON AN ANTI-NOISE CASE

The first sounds of trouble came in June 2008, when The Empire Hotel Rooftop Bar and Lounge opened atop the longstanding establishment at 44 West 63rd Street, near Lincoln Center. The residents of the adjacent co-op at 61 West 62 Street soon found, they said in a lawsuit filed a year later, that business-owner The Chetrit Group, headed by restaurateur Jeffrey Chodorow, "play[ed] or permit[ed] to be played music at extremely loud levels," often until 3 a.m.

The 123 of 311

The co-op's residents tried all the usual first steps: They called New York City's 311 assistance line to complain about noise and other issues, and police, firefighters and Department of Buildings and Department of Health inspectors came by on numerous occasions. No violations were issued — though as the co-op's attorney, Steven Sladkus of Wolf Haldenstein Adler Freeman & Herz, told one reporter, and as any New York resident knows all too well, "Unfortunately, you cannot rely on [regulatory] agencies to issue violations when violations are occurring."

Chodorow told the court that the bar — which consists of an open-air east terrace, near the co-op; a smaller west terrace with a retractable roof; and an indoor central area — only played music in the central and west terrace sections 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 and Saturdays. He said that although the bar's liquor license contained no such restrictions, the bar asked its patrons to vacate the east terrace after those times, except for smokers.

After the co-op's efforts with city agencies ate up several months, the board then hired an acoustical expert, Alan Fierstein, to take decibel measurements. He set up sound-measuring equipment in apartment 16M from Thursday to Sunday, April 16-19, 2009., and reported that the noise level inside the apartment from the music played at the bar consistently exceeded 66 decibels, which the court said was, in effect, 100 times more intense than the legal limit of 45 decibels. The Saturday reading occurred past the 12:30 a.m. cutoff that Chodorow had mentioned. Fierstein 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.

"Abuse of Discretion"

Judge J. P. Tom, the lone dissenter in the co-op's 3 to 1 victory, spent a large portion of his separate opinion debating the fine points of whether the window should have been opened or closed during noise-measurement — reasoning that New York City Noise Control Code's Section 24-231, which covers commercial music, only says the sound level be "measured inside any receiving property dwelling unit" and doesn't say whether the window should be open or not. Really. And because of that, he ignored the shareholders' suffering and dismissed the acoustical expert's report, saying, "Thus, it does not appear that the expert obtained his results under test conditions approved by the Commissioner of Environmental Protection…."

So, um, if your co-op is ever in this position, make sure to measure with the windows both open and closed.

Or not, since the majority did not agree with Judge Tom's reasoning and overturned the lower court, which had decided not to grant to the restraining order and preliminary injunction that the co-op wanted. The lower court, the Supreme Court found, had said there was "no precedent for granting relief that would upset the status quo and potentially hurt the bar's business" — seemingly putting the bar's choice to have outdoor music over the shareholders' non-choice to be stuck listening to it till the wee hours. As the Supreme Court now wrote, "this was error, and the failure to enjoin the excessive noise was an abuse of discretion."

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