Opinion
105937/09.
Decided August 26, 2010.
McCue Sussmane Zapfel, P.C., New York, New York, Plaintiff's Counsel.
Pesetsky Bookman, New York, New York, Malapero Prisco LLP, New York, New York, Defendants' Counsel.
In this case, plaintiffs, the owner and the resident of a condominium apartment in Manhattan, seek damages and permanent injunctive relief based on their allegations that defendants have created a private nuisance by playing music too loudly. Plaintiffs move for summary judgment on liability, and also for permanent injunctive relief, and request that the case be set down for inquest or trial as to damages. Defendant 344 Bowery Retail LLC (Bowery), the landlord of defendant Santa Anna Restaurant Corp. (Sala), cross-moves for an order to compel disclosure and to preclude plaintiffs from offering certain evidence at trial.
Plaintiffs complain that employees of their downstairs neighbor, Sala, which has been operating as a restaurant and lounge since 1999, have been playing excessively loud music into the night thereby greatly disrupting and interfering with plaintiff Yamilee Bongo's sleep, health and her ability to enjoy her home. Sala is located on two floors of commercial space directly below plaintiffs' apartment. Plaintiffs assert causes of action for private nuisance and, in their first cause of action, seek permanent injunctive relief. In their second cause of action, plaintiffs seek damages.
As to the injunctive relief sought, in the complaint plaintiffs demand that defendants be enjoined from operating a nightclub from 10:00 p.m. to 4:00 a.m., unless or until they install soundproofing materials sufficient to completely prevent any sounds from emanating from Sala into plaintiffs' apartment. In their memorandum of law, plaintiffs request a permanent injunction that would prohibit the playing of music in Sala above certain sound levels that are described in section 24-231 of the Administrative Code of the City of New York (the Noise Code) and prohibit the operation of any sound system in Sala from 9:00 p.m. through 11:00 a.m.
As background, by order filed June 12, 2009, Justice Walter B. Tolub granted plaintiffs' request to preliminarily enjoin defendants from playing music above the sound levels described in the Noise Code, and directed a hearing in early August on the matter. On August 4, 2009, a hearing was held at which Justice Tolub instructed defendants to propose a plan to ensure that the Noise Code requirements were met. On November 9, 2009, the parties appeared before Justice Tolub concerning the preliminary injunction motion and a contempt motion made by plaintiffs. After an evidentiary hearing, Justice Tolub denied plaintiffs' application to enjoin defendants from operating Sala in the late evening and early morning hours and, finding only a minor violation of the injunction, denied plaintiffs' contempt motion.
Defendant Bowery, Sala's landlord, appeared in November 2009, after stipulating with plaintiffs to vacate a default judgment that had been granted on August 28, 2009, but did not participate in the November 9, 2009 proceeding before Justice Tolub. On March 16, 2010, Bowery was granted leave to amend its pleading to interpose a cross claim against Sala for contribution, contractual and common-law indemnification and for failure to procure insurance.
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephenson v Waisman , 39 AD3d 303 , 306 [1st Dept 2007]). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact'" ( People v Grasso , 50 AD3d 535 , 545 [1st Dept 2008], quoting Zuckerman v City of New York, 49 NY2d 557, 562). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" ( id. at 544; Negri v Stop Shop, Inc., 65 NY2d 625). "If there is any doubt as to the existence of a triable issue, the motion should be denied" ( F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186, 188 [1st Dept 2002]).
In support of her motion, plaintiff Bongo submits an affidavit in which she avers that she purchased her apartment, through Kahona Beach, LLC, from the building's sponsor in 2007 and, due to her extensive travel throughout 2008, did not then spend much time in the apartment, but thereafter moved in. Bongo avers that when she bought the apartment, she was unaware that Sala hosted private parties and operated as a nightclub on weekends, but soon learned that Sala employees regularly play loud music with a strong bass line audible in her apartment. Bongo chronicles her inability to fall asleep, nighttime awakenings, experiences with sound emanating from Sala and calls to Sala about noise from June 2009 through March 2010. Bongo avers that the level of the bass frequencies severely degrades her quality of life, and that in addition to hearing sound, she can feel vibrations from the music in her apartment. Bongo claims that the music disturbs her studies and has led to exhaustion, extreme stress, and physical harm and that as a result, she spends as much time away from her apartment as possible and has listed it for sale. Bongo feels that the noise problems must be disclosed to a purchaser, and that she therefore will be unable to obtain the apartment's true value from a buyer.
It is undisputed that Bongo provided access to Sala and defendant Lombardi, Sala's principal (together, the Sala Defendants), to enter her apartment on August 13, 2009 so that the Sala Defendants could prepare a proposal to ameliorate noise, as was directed by Justice Tolub. Bongo states that she does not know what, if any, work was done at Sala, but contends that nothing was done to change Sala's sound system and that no requests were made for access to her apartment to perform acoustical testing. Bongo contends that her expert's proposed solutions, such as installing adequate soundproofing and sound limiters on the sound equipment, have been ignored, but remarks that the instances of unbearable music have diminished since November 2009, and that the Noise Code violations are more infrequent now.
Plaintiffs submit a letter, dated February 27, 2009, written by her counsel and addressed to the Sala Defendants and Bowery. The letter addresses Bongo's complaints to Sala of "loud music blaring" and "Sala's insistence on piping loud music into [plaintiffs'] apartment from opening until closing at 4 a.m." (Pl. Exh. 6). Plaintiffs state that there was no response to the letter, and that with it, and through earlier contact with Bowery, Bowery was notified of the noise condition.
Plaintiffs also submit the affidavits and testimony of expert Alan Fierstein, who opines that he measured the sound levels at Bongo's apartment from April 28, 2009 through May 5, 2009, on May 9, 2009, and again from October 14, 2009 through November 2, 2009. Mr. Fierstein's opinion is addressed in some detail below.
In addition, plaintiffs provide the affidavit of Bongo's house guest, Mr. Carl Restivo, who avers that on July 8, 2009, Sala was playing loud music from 6:45 to 8:30 p.m., and that he called and asked a Sala employee to turn the music down, but that the music was not turned down until 10:50 p.m., and that at 12:05 a.m. he was awakened by vibrations and loud music again being played by Sala. Mr. Restivo states that he also called Sala on July 9, 2009, at 7 p.m., asking that the music be turned down, that Bongo called again at 9:15 p.m., and that bass vibrations could be felt throughout the apartment.
In opposition to plaintiffs' motion, the Sala Defendants argue that plaintiffs' real dispute is with the developer, which failed to install adequate installation. In addition, Lombardi avers that defendants responded to every one of Bongo's calls, and always turned down the music even if it was dinnertime background music that could barely be heard by Sala diners. Lombardi further avers that the Sala Defendants have never been given a violation for noise, and that they provided a noise amelioration plan when directed by the court, but that plaintiffs were not satisfied with the plan. Lombardi states that the Sala Defendants agreed to cooperate with plaintiffs' expert, who made various recommendations that they were able to follow, and that subsequent testing showed that Sala was within legal noise limits. Lombardi also notes that plaintiffs chose to purchase a unit in an up-and-coming neighborhood in "the city that never sleeps," and that Sala has been continuously operating in the same place for a long time, has not changed its operations and generates no unusual noise (Lombardi Op. Aff., ¶ 16 [internal quotation marks omitted]). Lombardi avers that any decrease in value in the plaintiffs' apartment is attributable to the economic downturn, and that it was upon the death of Bongo's father that she asked for consideration concerning noise levels.
Discussion
To establish a private nuisance there must be an intentional and unreasonable interference by a defendant with a plaintiff's right to use and enjoy the premises he or she occupies ( Ward v City of New York , 15 AD3d 392 , 393 [2d Dept 2005]; Weinberg v Lombardi, 217 AD2d 579 [2d Dept 1995]). The elements of the cause of action are "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act'" ( JP Morgan Chase Bank v Whitmore , 41 AD3d 433 , 434 [2d Dept 2007]), quoting Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 570). "[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" ( Weinberg, 217 AD2d at 579; but seeMcCarty v Natural Carbonic Gas Co., 189 NY 40, 47 [1907])["What is reasonable is sometimes a question of law and at others a question of fact. When it depends upon an inference from peculiar, numerous or complicated circumstances it is usually a question of fact"]). Residents are not required to seek medical care or move in order to demonstrate injury ( see State ve Fermenta ASC Corp, 166 Misc 2d 524, 533 [Sup Ct, Suffolk County1995], affd in part 238 AD2d 400 [2d Dept 1997]), but must establish substantial annoyance or discomfort to the ordinary reasonable person, and more than mere discomfort or minor inconvenience ( Dugway, Ltd. v Fizzinoglia, 166 AD2d 836 [3d Dept 1990]).
Quoting the website of the New York City Department of Environmental Protection (DEP), the court in People v Bender ( 14 Misc 3d 1223[A], 2007 NY Slip. Op 50145[u] [Crim Ct, NY County 2007]) wrote: "The [DEP] lists noise complaints as the number one quality of life issue for city residents and touts that the [Noise Code], effective July 1, 2007, establishes 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 [internal quotation marks and citation omitted]." Certainly, the interference with a person's sleep, and the right to the quiet enjoyment of one's residential premises is a matter of great importance. However, plaintiffs seek a permanent injunction, and such relief "is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction" ( Icy Splash Food Beverage, Inc., v Henckel , 14 AD3d 595 , 596 [2nd Dept 2005]; see e.g. Matter of 35 New York City Police Officers v City of New York , 34 AD3d 392 , 394 [1st Dept 2006]).
Defendants argue that plaintiffs have not alleged facts which, if believed, would show the defendants' unreasonable and substantial interference with plaintiffs' use and enjoyment of the apartment, or their injuries therefrom. Defendants maintain that the preliminary injunction proceedings have not resolved any issue, other than that on a few occasions the music from Sala exceeded the Noise Code limits, and that no finding was ever made that, under the circumstances, Sala's music is playing at an unreasonable level. The Sala Defendants point to Justice Tolub's findings on the contempt motion that plaintiffs had only one example of an elevated noise level reading during a specific period. They also claim that they lowered the volume of the music every time Bongo complained, whether or not it was loud, and point out that they have received no noise violation citations, and that plaintiffs have taken no steps to mitigate their alleged injury.
The Sala Defendants also contend that plaintiffs' expert did not find that music from Sala was blaring into plaintiffs' apartment, but only that there were bass vibrations, and assert that the cause of Bongo's stress, exhaustion and anxiety was the loss of both of her parents in a short period of time after she purchased the apartment. The Sala Defendants argue that their continuous lawful operation of their business must be weighed against Bongo's alleged discomfort, with the court weighing the reasonableness of the noise alleged to be a nuisance in light of all of the circumstances. Finally, the Sala Defendants contend that it is critical to them to discover the extent of Bowery's awareness that soundproofing materials were removed during the renovation of the building to condominium units, which, they maintain, is a liability issue.
In reply, Bongo avers that the death of her stepmother and her father did not occur until later in 2009, but that her dispute with defendants started in Fall 2008. Bongo further avers that she is not hyper-sensitive to sound, but has learned that she is sensitive to bass music blaring into her apartment, causing the floor and walls to vibrate and her furniture to shake.
Plaintiffs state, in their reply memorandum of law and elsewhere, that the Sala Defendants played music that exceeded the Noise Code by 400%, but this assertion does not accurately reflect plaintiffs' expert's discussion regarding the sound level, in which he stated that a sound of 66 decibels is more than four times as loud to the human ear as the Noise Code's 45 decibel limit.
As is generally the case in nuisance suits ( Weinberg, 217 AD2d at 579; see Lawrence Wolf, Inc. v Kissing Bridge Corp., 288 AD2d 935, 936 [4th Dept 2001]; Futerfas v Shultis, 209 AD2d 761, 763 [3d Dept 1994]), this case presents issues of fact for trial. The primary dispute here concerns the reasonableness of the noise that has emanated from Sala.
Despite what appears to be the Sala Defendants' contention otherwise, plaintiffs have no obligation to tolerate any violation of the Noise Code. Indeed, it is the Sala Defendants that are required to operate their business within the confines of the law. In a noise nuisance case, however, while sound level is certainly a significant factor, the unreasonableness of an alleged interference with a property owner's rights also requires the evaluation and weighing of multiple other factors, including the duration of the allegedly offending sound, the times at which it is made, whether the condition is recurring, and if so, with what frequency ( see Futerfas v Shultis, 209 AD2d at 763). Clearly sounds that are reasonable midday, may not be so after midnight ( see Matter of Twin Elm Management Corp. v Banks, 181 Misc 96 [Mun Ct, Borough of Queens, 2d Dist 1943] [12 hours of piano practice found not to be a nuisance where there was no showing that the piano playing was exceptionally loud or performed at unreasonable hours]), and 10 minutes of disturbance on rare occasions is not the same as 10 minutes of disturbance hourly. In addition, the character of the neighborhood must also be considered, as what is acceptable in an industrial area may not be acceptable in a residential area. Whether or not a plaintiff came to the nuisance is also a factor, but of less significance than the level, duration and frequency of occurrences of sound ( cf. McCarty, 189 NY at 50), and of little, if any, significance concerning a violation of the law ( see Graceland Corp. v Consolidated Laundries Corp., 7 AD2d 89, 93 [1st Dept 1958], affd 6 NY2d 900).
Plaintiffs have demonstrated what Bongo deems to be disturbances on the order of approximately three times a month for seven of the 10 months from June 2009 through mid-March 2010. While Bongo avers that her expert demonstrated to her what noise levels would exceed the Noise Code limits, for many of her affidavit entries concerning occasions of noise she does not adequately quantify the level ( see e.g. Bongo Mov. Aff., ¶¶ 22 [June 25, 2009 incident], 27 [July 5, 2009 incident]; 29 [August 3, 2009 incident]). Bongo describes the volume of the sound in the apartment as exceeding Noise Code limits on five occasions in the June 2009 through March 2010 period, but does not state the basis for her knowledge of this assertion, or specify how long the noise exceeded the Noise Code limits on these occasions. Bongo also does not make clear that the Noise Code was violated during instances when she describes the music as loud or disturbing.
Plaintiffs also submit the July 24, 2009 testimony of Sala's manager that he was listening to music when there was no one in Sala, and that upon Bongo's complaint he went to plaintiffs' apartment to hear the sound, but heard no music (Pl. Exh. 5, at 46). Sala's manager also testified that the restaurant had been playing the music at "an unbelievably low degree, so I've turned the music from ambient background restaurant music to almost nonexistent," but that despite this, he has personally received five to 10 complaints from Bongo since May 2009 ( id., at 56-57). The report of plaintiffs' expert, Fierstein, reflects that for a week commencing April 28, 2009, Bongo recorded music that she felt was loud enough to wake her or prevent her from sleeping and that on Saturday, May 9, 2009, Fierstein performed a noise test himself. Fierstein's report contains two graphs, with the first demonstrating a six-minute period of music at varying volumes, on May 2, 2009, a Saturday night, from 11:45 p.m. to 11:51 p.m., during which time the noise exceeded the Noise Code limits. The second graph demonstrates a three minute period, on May 1, 2009, a Friday night, from 11:09-11:12 p.m., where the sound level in plaintiffs' apartment exceeded the Noise Code level. Presumably these readings were the highest readings. Fierstein avers that he heard and recorded the same type of noise in the apartment and opined that there were "[d]ozens of incidents of disturbing music during the week" (Pl. Exh. 8 [May 12, 2009 letter], at 3), and that the apartment is unreasonably loud, but also states that the sound violated the Noise Code "when the music is playing at the levels I measured" ( id., at 6). It is not clear whether plaintiffs' expert is opining that the level of sound generated by Sala exceeded the Noise Code on multiple occasions, or only for the three-and six-minute periods illustrated or measured in the graphs on Friday and Saturday night.
Plaintiffs also submit a second report from Fierstein addressing the 19-day period from October 14, 2009 through November 2, 2009, in which Fierstein made similar assertions (Pl. Exh 15 [November 2, 2009 letter], at 2). The record reveals, however, that at the November 9, 2009 proceeding, Fierstein testified, regarding one of the graphs in his report, that within the two and a half minutes of sound illustrated therein, there were approximately 10 seconds in which the noise level exceeded the Noise Code, followed by a remaining period in which the music was not audible for the remaining time except for a couple of spots. Fierstein also testified that out of Bongo's hours of recordings over the 19-day period, the sound only exceeded the Noise Code on October 25, 2009 (Pl. Exh. 16, at 38). Thus, Justice Tolub determined that there had been only a minor violation of the injunction, and insufficient evidence to hold defendants in contempt (Pl. Exh. 16, at 51). In any event, other than the Noise Code violations discussed, the record, without further explanation, does not lend itself to meaningful assessment of the duration and frequency of Noise Code violations.
Consequently, plaintiffs' own submissions demonstrate that there are fact issues, from which inferences must be drawn, as to the level, frequency, duration and other factors concerning the noise. In addition, plaintiffs seek injunctive relief of a far greater magnitude than merely the curtailment of bass frequencies, despite that their expert did not opine that there has been a violation of the Noise Code other than the specific section that concerns bass frequencies. In fact, plaintiffs seek an order enjoining Sala from playing music at all from 9 p.m. until 11:00 a.m. every day.
Plaintiffs' seek to enjoin the Sala defendants from playing music or allowing music to be played at a level in excess of certain limits established in the Noise Code, but, on this record, plaintiffs have demonstrated the violation of only one section ([a] [2]) of the Noise Code and not the other sections ([a] [1] and [a] [3]) upon which plaintiffs model their broad request for permanent injunctive relief.
Plaintiffs also point to Justice Tolub's discussion, during previous proceedings concerning the preliminary injunction, about plaintiffs' status as third-party beneficiaries to a lease between Sala and its landlord, Bowery. As plaintiffs plead only a nuisance claim, and not a contract claim, whether or not they are third-party beneficiaries to the Sala lease with Bowery will not be addressed here. In addition, while both plaintiffs and defendants point to Justice Tolub's comments during the prior preliminary injunction proceeding, "a preliminary injunction is a provisional remedy and a decision concerning a preliminary injunction does not become the law of the case, nor would it constitute an adjudication on the merits so as to preclude reconsideration of that issue at a trial on the merits [internal quotation marks and citation omitted]" ( Icy Splash Food Beverage, Inc., 14 AD3d at 596).
Plaintiffs also cite to cases in which courts have commented negatively about those who, concerning a nuisance, callously disregard the rights of others ( see e.g. Hohenberg v 77 W. 55th St. Assoc., 90 AD2d 750 [1st Dept 1982] [defendant did nothing to ameliorate noise condition in building]), and argue that defendants have ignored Bongo's pleas and taken no steps to ameliorate the noise problem. Plaintiffs' submissions, however, reveal that, on November 9, 2009, Lombardi testified that since the August 4, 2009 hearing, some repairs had been made to a ceiling in Sala, and that all of the speakers in the restaurant were lowered from Sala's ceiling (Pl. Exh. 16, at 44). Lombardi further testified that he has attempted to measure the sound in the restaurant and has marked the volume levels on the sound system and allegedly provided instructions to staff in order to remediate the problem, and that he hired someone to monitor the music level when customers submit their own music ( id., at 44-49). As previously noted, on summary judgment, evidence must be viewed in favor of the non-moving party. In addition, the testimony of Sala's manger and Lombardi that Sala turned down the sound when Bongo complained conflicts with Bongo's averments that her calls were ignored or met with rude responses and, on summary judgment, a court "may not evaluate the parties' credibility to decide whose version of the facts is true" ( Gurfein Bros., Inc. v Hanover Insurance Co., 248 AD2d 227, 229 [1st Dept 1998]), but is essentially obligated to accept the opposing party's version of the facts ( see e.g. Shands v Escalona , 44 AD3d 524 , 524 [1st Dept 2007]).
The dates when the remedial efforts were undertaken are not clear on the record.
While the Sala Defendants' submissions by no means satisfactorily demonstrate the abatement of any sound problem, issues of fact preclude summary judgment and the granting of a permanent injunction of the magnitude sought by plaintiffs. If the repairs Lombardi discussed have been made, there is a fact issue as to where things stand now. While this would not preclude plaintiffs' recovery for damages ( see Hochenberg, 90 AD2d 750, supra [discussing damages]).
Assuming, arguendo, the truth of the Sala Defendants' assertion that the building developer failed to properly insulate the condominium, they have not demonstrated how this would permit Sala to violate the Noise Code or to avoid responsibility for nuisance. The Noise Code is intended to promote the peace of mind and health of New Yorkers. That the City never sleeps does not change that Sala must comply with the law.
As there are fact questions concerning plaintiffs' nuisance claim, plaintiffs' motion for summary judgment as against Bowery, based on their contention that Bowery had notice of Sala's acts, is denied, without prejudice to renew at trial.
Bowery's motion to preclude, based on plaintiffs' failure to comply with Bowery's discovery demands is also denied. With its contention that it made a single, apparently unreturned, phone call to plaintiffs' counsel concerning discovery, Bowery does not demonstrate plaintiffs' bad faith or willfulness under the circumstances here. Thus, there is no basis for the harsh remedy of preclusion. Bowery has demonstrated a basis to compel plaintiffs to comply with its demands, and plaintiffs are ordered to do so, as discussed below.
Bowery's motion to compel is granted to the extent that, within 45 days of service on plaintiffs by Bowery of this decision and order with notice of entry, plaintiffs are to comply with the following discovery and other demands made by Bowery: (1) the demand for a bill of particulars; (2) the demand for collateral source information; (3) the notice to produce; (4) the notice for discovery of statement of party; (5) the notice for discovery and inspection of expert witness information; (6) the demand for witness disclosure; and (7) the demand for insurance information, all of which are dated January 29, 2010. The parties are also directed to appear for a court conference, as directed below, to address discovery, including, if necessary, a deposition schedule. Bowery's motion is otherwise denied, without prejudice to renewal upon proper papers, as the record does not demonstrate a basis for Bowery's demands for authorizations for plaintiffs' social security disability authorization, income tax, employment, union and workers' compensation records or for "Ad Damnum Information" ( see Havens v Tucker, 136 AD2d 814, 815 [3d Dept 1988]).
Bowery's demand for a bill of particulars appears geared toward a negligence action, and plaintiffs are ordered to comply by responding to the demand as appropriate, considering the nature of this action. Plaintiffs' contention that Bowery is not entitled to discovery because it was not in the action from its commencement ignores that plaintiffs stipulation agreeing to vacate the default.
Accordingly, it is
ORDERED that plaintiffs' motion for summary judgment is denied; and it is further
ORDERED that defendant 344 Bowery Retail LLC's motion to preclude is denied; and it is further
ORDERED that defendant 344 Bowery Retail LLC's motion to compel is granted to the extent that, within 45 days of service on plaintiffs by Bowery of this decision and order with notice of entry, plaintiffs shall comply with Bowery's (1) demand for a bill of particulars; (2) demand for collateral source information; (3) notice to produce; (4) notice for discovery of statement of party; (5) notice for discovery and inspection of expert witness information; (6) demand for witness disclosure; and (7) demand for insurance information, all of which are dated January 29, 2010; and it is further
ORDERED that a preliminary conference will be held on October 21, 2010, at 9:30 AM, in Part 8.