Summed up, Bowery's argument is that there was no nuisance, which is based on its contention that plaintiffs can not demonstrate continuing violations of section 24-231 of the Administrative Code of the City of New York (the Noise Code) after August 2009, sufficient to establish a nuisance claim. Regardless of how many Noise Code violations plaintiffs' expert asserts occurred after August 2009, Bowery does not address the period before then, including April and May 2009, during which the expert opined that the sound level violated the Noise Code. Plaintiffs' expert's assertions, with Bongo's testimony, demonstrate that there is a fact issue as to whether there was substantial and unreasonable interference with Bongo's use and enjoyment of her unit that an ordinary reasonable person would have found annoying or the cause of discomfort (see e.g. 61 W. 62 Owners Corp. v CGM EMP LLC, 11 AD3d 330, 334 [1st Dept 2010] [on preliminary injunction motion residents demonstrated that interference was substantial as the noise exceeded allowable levels under ordinance, unreasonable because of the time of night and intentional as it was in furtherance of bar's commercial purposes]). Bowery asserts that it was not advised of purported continued noise complaints, but its witness testified that Lombardi contacted Bowery about plaintiff's noise complaint and plaintiff has submitted a letter, from February 2009, to support her contention that she notified Bowery of her complaint.
Additionally, it is undisputed that Brick is currently operating illegally, This evidence, coupled with the expert testimony provided by both plaintiff's and defendant's acoustical engineers that the noise levels violate applicable code provisions, demonstrates a likelihood of success on the merits of plaintiff's nuisance claim (see Poughkeepsie Gas Co. v Citizens' Gas Co., 89 NY 493; Arcamone-Makinano v Britton Prop., Inc., 83 AD3d at 624; 61 W. 62 Owners Corp. v CGM EMP LLC, 11 AD3d 330). Plaintiffs have also demonstrated that the lack of quiet enjoyment is causing irreparable injury (see 61 W. 62 Owners Corp. v CGM EMP LLC, 11 AD3d 330 [1st Dept. 2010]).
December 28, 2004. Appeal from the 1st Dept: 11 AD3d 330 (NY). Application in criminal case for leave to appeal denied.
This evidence established beyond a reasonable doubt that defendant possessed the drugs. The number of vials possessed ( see People v. Alvino, 71 NY2d 233, 245; People v. Beltran, 11 AD3d 330, lv denied 4 NY3d 741), as well as the expert testimony ( see People v. Hicks, 2 NY3d 750, 751), to which there was no objection, established that defendant possessed the drugs with intent to sell.