First published: Feb 2023
The Unbearable Sound of Noise
There are at least two important points to make about this unusual decision. First, the courts recognize the inherent noisiness of living in New York City and are not inclined to find a public nuisance just because the children in the apartment upstairs run around a lot. Second, condominium boards have broad powers and discretion when it comes to enforcing its own rules, but a board that effectively abdicates its enforcement responsibilities may not be protected from legal consequences. Taking the two lessons together, while it is reasonable for condominium boards to treat noise complaints skeptically as a general rule, they still need to take them seriously enough to show that the complaints were investigated.
BACHARACH V. BD. OF MGRS. OF THE BROOKS-VAN HORN CONDO.
What Happened The owners of condominium apartment 3D in Chelsea had complained about noise coming from their upstairs neighbors for years. They tried to resolve the issue with their upstairs neighbors in 4D, but to no avail. At the end of 2021, they hired an acoustic company to assess the noise during a two-week period, and its report found the noise to be “unreasonable, excessive, intrusive, a violation of the city’s noise code, and most notably, preventable.” The condo board finally levied a fine against the noise makers, but according to 3D owners, 4D continued to make noise, so they sued the condo board for breaching its contractual obligation to enforce the house rules with respect to the alleged excessive noise coming from the upstairs apartment. In addition, the 3D owners moved to add a new claim against the condominium board under Section 339-j of the Condominium Law to force the individual defendants to “seek retroactive Board approval” for their flooring and to “ensure compliance with all Condominium requirements and all applicable governmental regulations.”
In Court 3D’s claim for private nuisance against the 4D owners was dismissed, but in an unusual split decision the court denied the board’s motion to dismiss the claims against it, and also permitted 3D owners to amend their complaint to assert a claim against the defendants under Section 339-j.
Kids Will Be Kids First, regarding the nuisance claim, the court found that the 3D owners had not alleged any facts that showed the noise was anything more than “incidental to normal occupancy.” In essence, the court found that the “persistent running, jumping and playing” of 4D’s children was to be expected in a Manhattan condominium building and that the 3D had not alleged any facts that would take the matter out of the realm of normal and accepted noisiness.
But For The Board The remaining issues were more complicated. The 3D owners had alleged that the condominium had breached its contractual obligations by failing to enforce various provisions of its by-laws relating to building rules prohibiting excessive noise. The board moved to dismiss on the theory that (a) the condominium’s governing documents grant the board the discretion to enforce the noise rules as it sees fit, and (b) the business judgment rule protects the board’s enforcement decisions from judicial scrutiny. The court refused to dismiss the case on the basis of those arguments, however, because the plaintiffs had alleged that for a period of over two years, the board had simply failed to investigate the plaintiffs’ complaints at all. If true, the court found, this arguably would place the board’s conduct outside of (a) its obligations under the governing documents and (b) the protections of the business judgment rule.
The issue whether to allow the Section 339-j claim was a matter of first impression for the court. Section 339-j is a relatively obscure provision of the Condominium Act which provides in relevant part that a condominium unit owner’s failure to comply with the condo bylaws, or house rules adopted under the bylaws, “shall be ground for an action . . . for damages or injunctive relief or both maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an aggrieved unit owner.” The language of the statute does not make clear what a “proper case” would be that would allow a unit owner to force the board to act against another, and the court was unable to find any case law on point. In this case, the court decided that because the plaintiffs alleged that the board had abdicated its enforcement responsibilities under the governing documents, that could provide a basis for a right of action under Section 339-j.
COUNSEL: For the board: Bryan Mazzola, BOYD RICHARDS PARKER COLONNELLI ; For 4D owners: Robert Moore. BOYD RICHARDS PARKER COLONNELLI; For 3D owners: Lee Bergstein, David Friedman, BERGSTEIN FLYNN KNOWLTON & POLLINA: JUDGE: Gerald Lebovits
