ANTI-NOISE CASE, P.2

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.