First published: Apr 2023
Turn Down That Noise!
Noise complaints in New York City are common, yet not easy to win. Often the line is subjective, and courts are sensitive to the notion that Big City life is not country life. But here, the plaintiff backed up her claim with objective proof that the noise at issue was particularly bad, and exceeded the Noise Code. Armed with evidence that this was not the usual noise generated in a large, complicated, and heavily populated metropolis, she prevailed and got an injunction. No small feat, and the case is worth examining to see what distinguishes a winning hand from a losing hand.
GROSS V. 133 EAST 80TH STREET CORP.
WHAT HAPPENED Ms. Gross bought a three-bedroom apartment at 133 East 80th St., a 14-story, 26-unit residence in a luxury co-op built in 1930 by renowned architect Rosario Candela. Approximately a year after she moved into her second-floor unit, the co-op leased a commercial space directly under it to Joe & The Juice, a coffee shop and juice bar. Since then, Ms. Gross claims she has suffered from loud bass music, excessive banging, and loud whining machine noises nearly every morning from 7AM to 9AM. She has spoken with the store directly, asked the co-op's board to undertake remedial efforts and in March 2022 hired an acoustical consulting company to perform tests in her apartment. The acoustical experts found there was likely a lack of sufficient soundproofing in the commercial space; that the noise was sporadic, unpredictable, and caused a “startle effect” which is more than mere annoyance; and that the noise levels violated New York City’s Noise Code. In June, Ms. Gross’s attorney wrote a letter to the board about the excessive noise, provided a copy of the acoustical report, and requested that the co-op take steps to abate the noise. Some discussions ensued, but the noise continued. Finally, Ms. Gross filed suit against the coop and the juice bar, alleging three claims: private nuisance against both the co-op and the juice bar and breach of contract and breach of the warranty of habitability against the coop. She is seeking a preliminary injunction to bar the juice bar from making impermissible noise.
IN COURT The court found that the plaintiff met her burden, and a preliminary injunction was granted. The court analyzed this motion using the three familiar elements that must be established in order to grant a preliminary injunction: a likelihood of success on the merits of the claim; irreparable harm in the absence of an injunction; and a balance of equities in the movant’s favor. Here, the acoustical expert established that there were hundreds of banging and machine sounds caused by coffee grinders, blenders, and smoothie machines and these were in excess of 15 decibels over ambient noise. These sounds thus constituted “impulsive noise” under the Noise Code, and they exceeded permissible levels. Moreover, the plaintiff suffered irreparable harm from the noise, as she was unable to sleep or rest, or make or stay on telephone calls. The resulting headaches, stress, and anxiety made it almost impossible for her to live in her home. Finally, the equities weighed in the plaintiff’s favor, as she was not seeking to force the juice bar to cease operations. Instead, the plaintiff asked the music to be lowered; wanted employees to be instructed not to slam doors or bang equipment; and sought installation of temporary soundproofing until a permanent solution could be found.
COUNSEL: For the co-op: Scott Haworth, David Kong HAWORTH BARBER & GERSTMAN; For Joe & The Juice: Amanda Nelson COZEN O’CONNOR; For Grecia Gross: Victoria Serigano SCHWARTZ SLADKUS REICH GREENBERG ATLAS; JUDGE: Paul A. Goetz
