Matter of Filippini: Judge's Decision re: Harassment

Matter of Filippini
OATH Index No. 940/07 (Mar. 7, 2007)
[Loft Bd. Dkt. No. TH-0181; 112-114 West 14th Street, New York, N.Y.]

NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of
ROBERT FILIPPINI and GORDON WALLACE
Petitioners

JOHN SPOONER, Administrative Law Judge

A hearing was held before me on January 30, February 5, and February 14, 2007, during which each party called three witnesses. As discussed below, I find that the landlord's consent to the fitness studio's hanging of two punching bags directly below tenant's unit and failure to take action upon tenant complaints about noise and vibrations for some three months constituted harassment. I recommend that Western be fined $1,000.

Mr. Filippini described various efforts to have the landlord remedy the noise problem. He initially complained to the landlord in March about the excessive noise. He also complained to the Department of Buildings and the Department of Environmental Protection, but was never able to get an inspector to come to the building when the noise from the gym could be heard. When nothing was done by Western, Mr. Filippini hired an attorney and brought a proceeding in Housing Court in late March 2006. After a hearing in June and July 2006, the Housing Court issued a decision (Pet. Ex. 18) on August 16, 2006, finding Mr. Filippini's testimony as to the noise and vibrations "vague and conclusory" and insufficient, in the absence of sustained noise violations or expert testimony, to support a finding that the noise from the gym violated the Administrative Code.

Alan Fierstein, an acoustic consultant hired by petitioners, provided the tenants with a special recording system to capture the sounds coming from the George K. Fitness studio. He set up his equipment just outside Mr. Filippini and Mr. Wallace's bedroom on November 27, 2006, and, one week later, returned to pick up the equipment and the recordings (Tr. 13-14). Upon analyzing the recordings, he concluded that the music reached as high as 74 decibels at 80 hertz, some 30 decibels higher than loudest allowable level under the applicable law (Tr. 23). See Admin. Code § 24-231 (Lexis 2007). The average level of the music was 70 decibels (Tr. 27). The sounds of the punching bag were much louder, at around 99 decibels. Mr. Fierstein explained that, although this level was only about 25 decibels louder than the music, it would have sounded some six times louder due to the nature of the decibel measurement (Tr. 29). According to the noise log (Pet. Ex. 17) kept by Mr. Filippini during this week, the punching bag noises and music occurred every week day as follows: Monday: 6:00 p.m. to 7:30 p.m.; Tuesday: 4:45 p.m. to 7:30 p.m.; Wednesday: 4:10 p.m. to 5:20 p.m.; Thursday: 8:30 a.m. (no end time recorded); and Friday: 9:00 a.m. to 11:38 a.m. and 4:00 p.m. to 5:30 p.m.

Mr. Fierstein, petitioners' acoustics expert, also testified convincingly that the music, when it was played, was louder than would be legally allowed.