Summary
finding that "it is wholly immaterial to maintaining an action for nuisance at common law whether or not DEP, or any municipal authority, has issued noise ordinance violations"
Summary of this case from Halpern v. Ramen Setagaya, Inc.Opinion
No. 122 SSM 10.
Decided March 31, 2011.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court entered August 24, 2010. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Debra A. James, J; op 2009 NY Slip Op 31739[U]), which had denied a motion by plaintiff for a preliminary injunction, and (2) remanded the matter for an appropriate provisional remedy. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Plaintiff was the owner of a residential cooperative apartment building. In 2008, defendants began to operate a bar on the rooftop of a 12-story building adjacent to the cooperative. Less than a year later, the plaintiff commenced the present action, alleging that defendants "play or permit to be played music at extremely loud levels," thus tormenting the cooperative's residents whose apartments are near the bar, and that the pounding and other noise often continued until 3:00 AM. Plaintiff sought a permanent injunction to prohibit the congregating of persons in the nonenclosed areas of the rooftop, as well as the emanating of noise at unlawfully loud levels in violation of the New York City Noise Control Code. Plaintiff moved by show cause order for a preliminary injunction prohibiting the bar's use of the open roof deck as well as the excessive noise attendant thereto. In response, defendant submitted an affidavit stating, among other things, that the bar had never been issued any violations for noise by the New York City Department of Environmental Protection.
61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330, modified.
Windels Marx Lane Mittendorf, LLP, New York City ( Bruce F. Bronster and Gregory J. Kerr of counsel), for appellants.
Wolf Haldenstein Adler Freeman Herz LLP, New York City ( Steven D. Sladkus and Christopher Cobb of counsel), for 61 West 62 Owners Corp., respondent.
Cozen O'Connor, New York City ( Michael C. Schmidt and Menachem J. Kastner of counsel), for West 63 Empire Associates LLC, respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, without costs, by remitting to the Appellate Division for further proceedings in accordance with this memorandum and, as so modified, affirmed. The certified question should be answered in the negative.
The failure of authorities to issue a violation of the New York City Noise Control Code ( see Administrative Code of City of NY § 24-201 et seq.), by itself, does not preclude plaintiff from establishing that it is likely to succeed on the merits. However, it cannot be said on this record that the imposition of a provisional remedy is required as a matter of law. Therefore, the case should be remitted to the Appellate Division for the exercise of its discretion.
We have considered appellants' other contention, and determine that it lacks merit. On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.
Respondent West 63 Empire Associates LLC is not eligible for affirmative relief in this appeal and we express no view on the arguments it has made in that regard ( see Matter of Visiting Nurse Serv. of NY. Home Care v New York State Dept. of Health, 5 NY3d 499, 507 [2005]).