Expert Witness Testimony: Brasseur vs. Level Club Condominium

AMENDED DECISION/ORDER

Index No. 102949/04

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 35
MICHEL BRASSEUR and REBECCA BRASSEUR,
individually and in the name and for the benefit of
the RESIDENTIAL UNIT OWNERS OF THE LEVEL
CLUB CONDOMINIUM, Index No. 102949/04
Plaintiffs

-against-

JOE SPERANZA, DENNIS RUSSO, ANTHONY
MICOCCI, FIDELE VERO and HANS FETSCHERIN,
individuals constituting the de facto RESIDENTIAL
BOARD OF MANAGERS OF THE LEVEL CLUB
CONDOMINIUM, the RESIDENTIAL BOARD OF
MANAGERS OF THE LEVEL CLUB CONDOMINIUM
and ORSID REALTY CORP.,
Defendants.

Further, as to the noise issue, the Board failed to address or investigate the excessive noise emanating from the elevator machinery and air conditioning cooling tower, both proximate to the penthouse, and which derives from the lack of legally required vibration isolator pads supporting those common elements. The Board failed to dispute that the noise reported by the plaintiffs originates in the elevator system and massive air conditioning unit that abut the penthouse. Plaintiffs’ expert affidavit establishes that the noise levels exceed acceptable acoustic level from an apartment under New York law.

According to plaintiffs’ noise expert, the noise problems can be reduced by reinstalling the elevator and cooling tower so that they rest on appropriate sound and vibration dampering material. Since it is undisputed that there are no vibration isolator pads supporting the elevator machinery in the building, the elevator machinery does not comply with NYC Building Code 27- 14-770(b)(10), which requires the use of “isolator pads having a minimum thickness of one-half inch.” As it is likewise undisputed that there are no vibration isolators on the cooling tower of the building, the cooling tower violates NYC Building Code 27-770(b)(7), which requires that they be installed on vibration isolators providing a “minimum isolation efficiency of eighty-five per cent at fan rotor rpm with a maximum static deflection of four inches.” The Court notes that plaintiffs’ sound expert also explained the manner in which the absence of fan vibration isolators on the elevator room exhaust fan of the building violates NYC Building Code 27-770(b)(4). Therefore, in light of plaintiffs’ showing that the noises from the elevator and cooling tower stem from conditions violative of the NYC Building Code, the Court directs that the Board comply with said NYC Building Code sections noted herein by January 3 1,2007.

Based on the foregoing, it is hereby ORDERED that plaintiffs’ motion pursuant to CPLR 3212(e) for partial summary judgment on their first cause of action for an order declaring and ordering that the Resident.31 Board of Managers (the “Board”): (1) repair the common elements of the Level Club Condominium in accordance with the recommendations of plaintiffs’ expert, (2) remediate the mold affecting the subject apartment, (3) pay damages for the cost to repair the subject penthouse interior which has been damaged by moisture and mold, and (4) repair, replace or modify the common elements, which are causing unhealthy levels of noise to penetrate the penthouse, is granted solely to the extent that the Board shall install the necessary equipment in order to comply with NYC Building Code 27-770(b)( IO), NYC Building Code 27-770(b)(7), and NYC Building Code 27-770(b)(4) by January 3 1,2007

Full Decision (may not be suitable for small screens)