Alchemy Condominium vs. House of Sound

JUDGMENT

[Excerpts]

In February 2023, about two months after Respondent began boarding dogs in the Premises, Ms. Lopez hired Acoustilog, Inc. to investigate the dog barking that she was hearing in her apartment. Mr. Fierstein, the president of Acoustilog, Inc. was called by Petitioner as a witness. The Court qualified Mr. Fierstein as an expert in the field of acoustics based upon his credentials (Exhibit l9) and experience in the field. Mr. Fierstein testified that he has been working in the field of acoustics since 1976 and has extensive experience in designing dog day care facilities, conducting sound tests, and recommending solutions to mitigate noise migration.

Mr. Fierstein testified that he visited the building on three occasions. The first time was on February 2,2023, to set up the equipment he used to conduct his sound test in Apartment 1A. The second time was on February 10, 2023, when he picked-up his equipment and inspected the Premises.

On Mr. Fierstein's final visit he conducted a reverse sound test with Respondent's sound consultant, Dan Prosseda, on March 6,2023. The results of Mr. Fierstein's tests and inspections are contain in two sound reports, the first dated February 15, 2023 and the second dated March 9, 2023, which were entered into evidence as Exhibits 20 and 2l . Mr. Fierstein credibly testified that the dog barking he recorded in Apartment 1A violated $24-235 of the noise code because the barking was continuous and plainly audible for a period often minutes or more. In addition, the barking originated from the Premises and traveled through the Premises' ceiling and the floor of Apartment 1A into Apartment 1A.

Mr. Fierstein played a sound recording taken in Apartment 1A on February 3,2024, at approximately l0 a.m. Mr. Fierstein calibrated the speakers in the courtroom so that the sound recording was played at approximately the same level (within I to 2 decibels) as the noise was heard in Apartment 1A on that date and at that time. The dog barking was clearly audible and lasted for several minutes until the recording was turned off. Mr. Fierstein credibly testified that the sound absorption panels installed in the Premises, as well as the black foam Respondent added to the HVAC ductwork in the basement portion of the Premises were insufficient to block the sound of dog barking in the Premises from traveling into Apartment 1A. Similarly, the spray foam and caulking that Respondent added to cracks, gaps, and holes in the Premises' ceiling and Apartment 1A's floors were insufficient to block the sound of the dog barking because the floors/ceiling were not, by themselves, dense enough to block the sound.

Mr. Fierstein testified that the most effective way to stop sound from transmitting from the Premises was to install an acoustical dropped ceiling consisting of one to two layers of sheetrock, together with therma fiber insulation in the air gap between the Premises' ceiling and the layers of sheetrock. He also credibly testified that the dropped ceiling could be installed either above or below the HVAC ductwork in the Premises, although he recommended that it be installed below the ductwork.

The Court finds Petitioner's Expert, Mr. Fierstein is credible.

The pivotal issue in this holdover is alleged excessive noise. As per the lease the tenants' "operation of the Premises in a manner which (i) produces or transmits sounds audible outside the Premises, (ii) permits unreasonable noise to emanate from the Premises, and/or (iii) violates NYCAC 5 24-235" (Exhibit 5). The court finds, the Petitioner's and Ms. Lopez sound expert Mr. Fierstein, recommended the installation of an acoustical dropped ceiling as the best way to prevent sound from escaping from the Premises.

Installation of an acoustical dropped ceiling was not done, allegedly due to leaks.

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Based upon the foregoing, Petitioner is awarded a final judgement of possession for the Premises, with the issuance of a warrant of eviction against Respondent forthwith. Execution of warrant is stayed through February 26.2025. EDD February 27 ,2025. Warrant to execute upon a Marshal's notice.