Co-op 1, Obnoxious Bar 0
How a Board Won an Anti-Noise Case

By Frank Lovece
Published: Aug. 27, 2010

A residential co-op on Manhattan's Upper West Side has achieved a rare victory in silencing a rooftop bar whose loud music into the early-morning hours made its shareholders' lives intolerable. How the co-op board did so, and how it persevered through more than a year of effort, can prove instructive for other co-op and condo boards fighting bad-neighbor bars, cacophonous clubs and other noisy nightspots.

The first sounds of trouble came in June 2008, when The Empire Hotel Rooftop Bar and Lounge opened atop the longstanding establishment at 44 West 63rd Street, near Lincoln Center. The residents of the adjacent co-op at 61 West 62 Street soon found, they said in a lawsuit filed a year later, that business-owner The Chetrit Group, headed by restaurateur Jeffrey Chodorow, "play[ed] or permit[ed] to be played music at extremely loud levels," often until 3 a.m.

The 123 of 311

The co-op's residents tried all the usual first steps: They called New York City's 311 assistance line to complain about noise and other issues, and police, firefighters and Department of Buildings and Department of Health inspectors came by on numerous occasions. No violations were issued — though as the co-op's attorney, Steven Sladkus of Wolf Haldenstein Adler Freeman & Herz, told one reporter, and as any New York resident knows all too well, "Unfortunately, you cannot rely on [regulatory] agencies to issue violations when violations are occurring."

Chodorow told the court that the bar — which consists of an open-air east terrace, near the co-op; a smaller west terrace with a retractable roof; and an indoor central area — only played music in the central and west terrace sections Sunday through Wednesday from 5 p.m. to midnight, and Thursday through Saturday from 5 p.m. to 4 a.m., and on the east terrace until 11:30 p.m. on weekdays and 12:30 a.m. on Fridays and Saturdays. He said that although the bar's liquor license contained no such restrictions, the bar asked its patrons to vacate the east terrace after those times, except for smokers.

After the co-op's efforts with city agencies ate up several months, the board then hired an acoustical expert, Alan Fierstein, to take decibel measurements. He set up sound-measuring equipment in apartment 16M from Thursday to Sunday, April 16-19, 2009., and reported that the noise level inside the apartment from the music played at the bar consistently exceeded 66 decibels, which the court said was, in effect, 100 times more intense than the legal limit of 45 decibels. [Note: The reference to "100 times as intense" is the court's interpretation, not Acoustilog's]. The Saturday reading occurred past the 12:30 a.m. cutoff that Chodorow had mentioned. Fierstein stated that the sound did not come from traffic or other outside sound, and that it was clear to him that the bar had not installed sufficient soundproofing.

"Abuse of Discretion"

Judge J. P. Tom, the lone dissenter in the co-op's 3 to 1 victory, spent a large portion of his separate opinion debating the fine points of whether the window should have been opened or closed during noise-measurement — reasoning that New York City Noise Control Code's Section 24-231, which covers commercial music, only says the sound level be "measured inside any receiving property dwelling unit" and doesn't say whether the window should be open or not. Really. And because of that, he ignored the shareholders' suffering and dismissed the acoustical expert's report, saying, "Thus, it does not appear that the expert obtained his results under test conditions approved by the Commissioner of Environmental Protection…."

So, um, if your co-op is ever in this position, make sure to measure with the windows both open and closed.

Or not, since the majority did not agree with Judge Tom's reasoning and overturned the lower court, which had decided not to grant to the restraining order and preliminary injunction that the co-op wanted. The lower court, the Supreme Court found, had said there was "no precedent for granting relief that would upset the status quo and potentially hurt the bar's business" — seemingly putting the bar's choice to have outdoor music over the shareholders' non-choice to be stuck listening to it till the wee hours. As the Supreme Court now wrote, "this was error, and the failure to enjoin the excessive noise was an abuse of discretion."

Majority justices Catterson, Moskowitz and DeGrasse wrote that the co-op didn't lose its right to be free from excessive noise just because agencies hadn't issued a violation. "It is wholly immaterial to maintaining an action for nuisance at common law whether or not DEP, or indeed any municipal authority, has issued noise ordinance violations." Saying that relief "be predicated on defendants' violation of the New York City Noise Control Code is unsupported by citation to any authority whatsoever. To adopt such a view would make any common law cause of action dependent on the existence of an administrative code violation, a construct alien to New York law." Noting Judge Tom's essay on the noise law, the majority wrote that "the dissent's extended discussion of the Noise Control Code is simply inapplicable…."

Saying that bar had a choice whether to play loud music on the rooftop, the court found "no evidence … that either the use of the roof deck or the playing of music louder than permitted by law … is a significant and necessary part of the bar's business operations and income. There is no evidence … that the bar requires the use of the roof deck in the late night hours, other than for a patrons' smoking area outside the bar's enclosed premises." Thus the injunction limiting the playing of music on the rooftop "would appear from the record to have no impact on the bar's business whatsoever."

Accordingly, on August 24, 2010, the court granted the co-op's motion for a preliminary injunction and ordered the matter remanded "for an appropriate provisional remedy."

Bruce Bronster of Windels Marx Lane & Mittendorf, the hotel/bar's attorney, told the West Side Spirit community newspaper, "We only wish to get along with our neighbors. We don't believe we've ever created noise in violation of the noise code."

The prominent food-and-drink blog Eater.com said shortly after the ruling that the Empire Hotel "has been forced to close its outdoor area." Chodorow wrote to the site, saying Eater was incorrect, and stated, "[W]e have not been ordered by anyone to do anything, let alone shut down our outdoor terrace." That's technically true — the court ordered the lower court to remedy the noise situation — but it misses the point: The co-op never asked for the bar to be shut down, just for the excessively loud music to stop.

Which is an outcome many New York City co-op boards and condo associations would like to achieve themselves. Now, they have a blueprint.