Posted by: Patricia Salkin | September 26, 2010

NY Appeals Court Grants Preliminary Injunction in Nuisance Action for Noise Generated by Rooftop Bar

Plaintiff, the owner of a residential cooperative apartment building, sued the defendants, owners of a rooftop bar in the building adjacent to the apartments, claiming that defendants generated a nuisance that “degraded the residents’ quality of life and diminished their property values.” Specifically, the plaintiff alleged that the defendants played extremely loud music at their bar, often continuing until the early morning hours, which disturbed residents in the cooperative apartment building. The plaintiff maintained that this noise at such loud levels violated the New York City Noise Control Code, and sought a permanent injunction against the defendants’ use of the open deck roof. As evidence for the preliminary injunction, the plaintiff submitted affidavits of nine residents “describing the disturbances they experienced, the steps they had taken to try to deaden the noise, and the complaints they made to the defendants and to the City.” Also submitted was an affidavit from a professional engineer, stating that the bar plans that the defendant had filed with the Department of Buildings indicate that the bar was meant to be almost entirely enclosed and situated in the area that was farthest away from the apartment building and that the defendant did not obtain a certificate of occupancy, and therefore that the capacity of the bar exceeded the amount set by the Department of Buildings. Lastly, the plaintiff offered an acoustical consultant’s affidavit, who reported that the music played at the bar exceeded the legal noise level by one hundred times.  

Defendants insisted that music was only played in the central and west terraces to accommodate the residents of the cooperative apartment and that they had never been issued any noise violations by the DEP.  The defendants also contended that although their certificate of occupancy expired, they had done all the work in order to renew it. Stating the plaintiff had not proven the nuisance claim and that it was not clear that the Noise Control Code was violated by the defendants, the trial court denied the restraining order request as well as the preliminary injunction. The appellate court reversed and held that the plaintiff had proven all the elements for the preliminary injunction claim, that there was “(a) a likelihood of ultimate success on the merits; (2) the prospect of irreparable in jury If the provisional relief is withheld; and (3) a balance of equities tipping in [its] favor” The first element was satisfied through the residents’ complaints of the bar’s excessive noise, that this noise was not reasonably and that it “affected the residents’ right to use and enjoy their respective apartments.” The second element was also satisfied by the testimony of the residents and the expert witness of the loud noise which disturbed the peace of the residents. Lastly, the third element was satisfied in that the court found the cooperative to have a right to peace and quiet in the apartments during the night, which the defendants disturbed.  Therefore, the Court reversed the ruling denying plaintiff’s motion for a preliminary injunction. 

61 West 62 Owners Corp. v. CGM EMP LLC, 2010 WL 3306875 (N.Y.A.D. 1 Dept. 8/24/2010)

 The opinion can be accessed at:

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