Village 12th Street LLC v. Dale Gordon

Whose "side" are we on?
In this case a resident complained of loud conga drums and recorded music from the apartment downstairs. Our calibrated recording setup was used to provide a documented record of the disturbing sound levels that were transmitted to the upstairs neighboring apartment. The judge found for our client, the management company, quoting frequently from our report.

"The recordings made clearly demonstrate that the respondent played her conga drums and the stereo at impermissibly loud levels. On several occasions, the sound level [reached] 75 decibels, which is 8 times as loud to the human ear as the 45 decibel level."

The full decision appears below

Village 12th Street LLC v. Dale Gordon


Petitioner-Landlord L & T lndex No. 73086/09
DALE GORDON, Decision & Order

(all emphasis ours)

Hon. Brenda S. Spears, J., H.C.:

ln this holdover proceeding, the petitioner sought to regain possession of the subject apartment on the grounds that the respondent had engaged in a malicious or negligent course of conduct that harassed the petitioner and other tenants and occupants of the subject building by substantially interfering with their comfort and safety. Specifically, the petitioner alleged that there was disruptive drum playing and excessively loud music emanating from the respondents apartment. The respondent, who is represented by counsel, answered, denying these allegations. She counterclaimed that the petitioner had commenced this proceeding in bad faith.

This matter initially appeared on the court calendar on June 30, 2009. The parties settled this matter pursuant to a two-attorney stipulation dated October 1, 2009. The stipulation provided that, without admitting to the truth of any of the allegations set forth in the petition, the respondent agreed to a one year probationary period. During that time, she agreed that the noise emanating from the subject apartment as a result of conga drum music and/or music from a stereo system would not exceed 45 decibels at any time.

She also agreed that she would not permit any noise as a result of conga drum music to emanate from her apartment on Mondays through Fridays between 5PM and 8AM, except that she would be able to play the conga drums one hour each weekday evening between 5PM and 8PM on Mondays, Wednesdays and Fridays, and for one hour between 5:30PM and 8:30PM on Tuesdays and Thursdays. She further agreed that there would be no noise emanating from conga drum playing in the apartment between 6PM and 2PM on weekends. With respect to the stereo system, the respondent agreed not to play the stereo from 10PM and 8AM on any weekdays. On the weekends, she agreed that she would not cause or permit any noise from the stereo system during 10PM to 10AM. The respondent was further obligated to sound proof the conga drums and stereo equipment.

The stipulation further provided that the proceeding could be restored to the court calendar by motion for a hearing in the event that the petitioner in good faith believed that the respondent had breached the agreement.

Approximately one month after the parties signed the stipulation described above, the petitioner moved to restore the matter to the court calendar on the grounds that the respondent was in breach of the stipulation. That motion was granted. The hearing began on December 18, 2009. For the reasons set forth herein, this court finds that the respondent has breached the terms ofthe stipulation. And, as a result, the petitioner is awarded a final judgment of possession.

An acoustical engineer, who was designated an expert in acoustics without opposition, testified on behalf of the petitioner. The witness stated that he was aware that there had been complaints about noise coming from the subject premises and had been to the subject premises in April 2009 and provided a report tot he petitioner in May 2009. He subsequently learned that the parties had reached an agreement. He stated that in October 2009, he was asked to return to the subject building to conduct additional testing.

This witness testified that on October 2, 2009, he was given access to Apartment 32, the apartment immediately above the subject premises, so that he could set up a studio-quality Digital Audio Recorder, which is a calibrated microphone, to pick up the sound and accelerometer to pick up the vibration on the floor of said apartment. This testing was clandestine because it was done without the respondents knowledge, who the witness had not meet. The witness the recording device in an out-of-the-way location to minimize the chance of picking up extraneous sounds. This device was placed in a middle room that was not adjacent to other apartments . He stated that he did not hear traffic sounds while he was in the apartment. He further indicated that the tenants in Apartment 32 would be unable to tamper with the recording device.

He retrieved the equipment on October 16, 2009. He reviewed the recordings made during this time period and charted the results. According to the graphs prepared by this witness, the sound emanating from the subject premises was at 45 decibels on only two occasions. For the remainder of the time, the decibel level was for the most part between 60 and 70 decibels. However, on October 4, 2009 between 2:02 PM and 2:08 PM, the music level reached higher than 75 decibels. In addition, the recordings demonstrated that there was conga drum sounds on October 12, 2009 between 11AM and 11:47AM at 66 decibels or more. The witness was able to identify the sound as coming from conga drums was recognizable because it as very repetitive.

The witness concluded that during this period, there was music playing from a loud stereo and radio broadcast in addition to live conga drums. The peaks and valleys in the sound music were clearly audible on the recordings and displayed on the submitted graphs. He further stated that there did not appear to be anything mufflers on the congas.

The sounds emanating from the subject premises were, according to the witness, above the decibel levels permitted by the New York City Noise Code. If the respondent were conducting a commercial enterprise in the apartment, such as giving conga lessons, she would be precluded from creating sounds in excess of 45 decibel in any one-third octave bands. The witness further testified that any reasonable person would have concluded that the music coming from the subject premises was unusually loud because every nuance of every note could be heard clearly in Apartment 32.

An additional report was prepared concerning recordings made between November 30, 2009 and December 14, 2009. During this period, all the recordings contain loud levels of live conga drums or recorded music emanating from the subject premises. The witness found that the sound levels exceeded 70 decibels and at times exceeded 75 decibels.

The witness acknowledged that on the recording he heard some other sounds, such as street noise, bass music, TV and talking from Apartment 32; these sounds were not loud. Finally, the witness testified that he heard loud music emanating from the subject apartment while he was in the hallway at the subject building.

The resident of Apartment 32 also testified concerning the level of noise coming the subject apartment, which he stated was directly below his apartment. He was aware of the court-ordered stipulation and believed that the respondent had agreed to limit the times she could play her stereo and her drums. Despite this agreement, the witness stated, the respondent continued to play the drums during the proscribed time periods; she also continued to play her stereo at an extremely loud level at least twice a week. He stated that the noise was unbearable and that on many occasions, the noise was so loud that his apartment would vibrate. He found it was impossible to live comfortably in an apartment that he purchased for $700,000.

He testified that he contacted the Petitioner‘s counsel numerous times by e-mail to complain about the respondents continued behavior. He also made numerous calls to "311", the New York City hotline number; the police responded to these complaints in several instances. While he acknowledged that on many instances the police reports indicate that the officers could not establish that the respondent was creating excessive noise when they responded to his complaints, he contended that she would turn down the noise once she ascertained that the police were coming to the apartment. The loud noises would resume about 10 minutes after the police left.

The respondent testified, and vehemently disputed the petitioners contentions. She stated that she does not play her congas at any times other than those listed in the stipulation and, similarly, she does not play her stereo at a loud level. She further claimed that she had placed soundproofing around the congas as well as the stereo speakers. She also said that the area was noisy in general, with a substantial amount of noise coming from construction in the street and her building. At one time, she claimed, there were several musicians living in the building, but they have all left.

A close friend of the respondents also testified. According to this witness, she was in the respondents apartment 5 to 6 times each week. She also stated that she was familiar in general with the respondents stipulation. She stated that there was carpet in the apartment and that the congas drums were padded. She also stated that the respondents habits changed after June or July 2009. The respondent now played her music at a softer level and played her conga drums only about once a month.

The court finds that the respondent has presented no credible evidence that discounts the expert's testimony. The recordings made clearly demonstrate that the respondent played her conga drums and the stereo at impermissibly loud levels. On several occasions, the sound level [reached] 75 decibels, which is 8 times as loud to the human ear as the 45 decibel level. This is a 800% change in sound level that is clearly unusually loud. Moreover, the court notes that the testimony given by the respondents witness was inconsistent with that given by the respondent with respect to the frequency of the respondent's conga playing.

The respondent has failed to abide by the clear provisions of the stipulation. For this reason, the petitioner is awarded a final judgment of possession. The warrant shall issue forthwith. But, in the interest of justice, execution shall be stayed for 60 days. This constitutes the decision and order of the court.

Brenda S. Spears, J.
Dated: New York, New York
February 3, 2011