The amendments define unreasonable noise as sound that disturbs the peace or comfort of a reasonable person of normal sensitivities, but recognize that activities necessary for the city’s physical and economic growth will produce higher than desirable noise levels. The Amended Code therefore employs a three-prolonged approach: prohibiting sound that exceeds a decibel-cap; limiting the hours, days and distances at which excessive sound can be heard; and requiring best-practices for temporary noise, such as construction and repair sites.
This column discusses the Amended Code and expands on an earlier column3 dealing with whether excessive noise breaches the warranty of habitability when it emanates from a co-op or condominium building system, an apartment or from activities outside the building. We also make recommendations to assist boards and managers in responding to noise complaints from occupants.
attenuation protection being utilized to mitigate noise typical of construction activities, including pile driving, blasting and the like.5 The Amended Code thus accepts the reality that construction noise is unavoidable and seeks to mitigate it on a best efforts basis.
Even when an occupant causes the excessive noise condition that interferes with another occupant’s use of an apartment, the board may be in breach of the warranty of habitability. However, courts are loath to extend the warranty to include ordinary household noise or noise created by young children.16 In Hayes v. Housing Authority,17 a residential tenant was evicted without warning or probation because her children made excessive noise. The court overturned the eviction as disproportionate to the offense.
To circumvent court reluctance to apply the warranty to noisy neighbors, co-op residents have relied on other legal theories to obtain relief. In Pinehurst Constr. Corp. v. Schlesinger,18 the Appellate Division affirmed the eviction of an elderly woman who repeatedly banged on the ceiling of her rent-stabilized apartment through the night and yelled epithets at tenants living directly overhead. Although the court did not determine whether this behavior violated the warranty of habitability, it did find it a nuisance under the Rent Stabilization Code, warranting eviction.
Similarly, in Medows v. Stern,19 plaintiffs alleged their downstairs neighbor banged on his ceiling with a baseball bat and broomstick all day and night to harass them and their three-month old son. The court held plaintiffs were third-party beneficiaries of defendant’s proprietary lease and denied defendant’s motion to dismiss the claim. And in Paul v. Rokosz,20 the court held that excessive noise from a restaurant tenant’s rooftop air conditioning system which was audible in a residential apartment violated the Code and directed the landlord to remediate.
condominium unit owner) breached the warranty of habitability because noise caused by vibrations and jack-hammering during a neighboring building’s construction work deprived him of the use and enjoyment of the apartment. The Appellate Term held the warranty was breached and awarded tenant a 25 percent rent abatement. Under the Amended Code, if a Noise Mitigation Plan had been developed by the neighboring building, posted and adhered to, the outcome may have been different and no rent abatement awarded.
In 54-56 Management Corp. v. Birmingham,22 tenant leased an apartment above a restaurant and bar and two months later received a rent abatement based on noise penetrating her apartment from below. She thereafter renewed her lease, but stopped paying rent after a month, arguing that the commercial tenant operated an illegal cabaret show, creating excessive noise that dangerously affected her life, health, and safety. The court held the commercial tenant’s activities did not automatically breach the warranty of habitability because the tenant knew of the intended commercial use when she renewed her lease.
The Amended Code imposes greater responsibilities on boards to address excessive noise, but also establishes more flexible and clearer standards and enhanced enforcement procedures. When a board has notice or receives complaints of a noise problem, it must take prompt action. First, management should inspect the condition. If warranted, the board should retain professionals (such as acoustical engineers) to determine whether the noise is excessive and, if so, the board’s professional should develop a remediation plan. Management should maintain records of complaints and measures employed to evaluate and, if appropriate, alleviate the noise problem. Further, the cumulative decibel levels of building equipment and other circulation devices in the building, including apartment air conditioners, should be periodically monitored to ensure that they fall within permissible ranges. In addition, when buildings undertake noisy construction projects, boards should ensure that the general contractor and supervising architect develop, post and adhere to the Amended Code’s mandated Noise Mitigation Plan.
To prevent sound generated by apartment occupants from rising to the level of excessive noise, and to ensure that apartment owners are legally obligated to remedy the same, boards should specifically address noise attenuation obligations and remediation in their proprietary leases, house rules, bylaws and apartment alteration agreements. House Rules typically address quality of life issues and can be adopted by boards without shareholder or unit owner action. Boards may prohibit occupants from making noise that interferes with the rights, comfort, or convenience of other occupants by detailing appropriate hours for playing musical instruments, radio, or television and may provide that a certain percentage of an apartment be carpeted.
Boards can also use apartment alteration agreements to minimize noise by requiring compliance with the Amended Code’s regulations, including those that apply to construction sites. Occupants who plan to do construction work may be required to submit Noise Mitigation Plans to the building’s reviewing architect for approval. Installation of mechanical systems should be assessed by an acoustical engineer to determine that they will not create a noisy condition when completed. Also, boards should not permit alterations that change the functions of rooms so as to move a noisy room (such as a kitchen or bathroom) above a bedroom below. These techniques should assist boards in preventing excessive noise from developing and effectively addressing a noise problem if it nonetheless occurs.
1. New York City Department of Environmental Protection Website, http://www.nyc.gov/html/dep/html/air_and_noise/index.shtml.
3. See Siegler and Talel, “Noise and the Warranty of Habitability,” NYLJ, March 1, 2006, at 1, col.1.
4. New York City Office of the Mayor Web site, http://www.nyc.gov/mayor (follow “News and Press Releases” hyperlink; then follow “2005 Events” hyperlink; then follow “August 2005” hyperlink; then follow Aug. 17, 2005 “Read the Press Release” hyperlink).
5. New York City Local Law 2005/113 §10, eff. July 1, 2007.
8. The telecommunications equipment in this building may not be turned off. Therefore, all air-conditioning units must be running at all times. This eliminates the possibility of turning all but one of the air-conditioning units off in order to test the sound output of the one air-conditioning unit that remains running.
9. New York City Local Law 2005/113 §10, eff. July 1, 2007.
10. N.Y. Real Property Law §235-b (McKinney Supp. 2008).
comply with the warranty of habitability.
12. Regensburg v. Rzonca, NYLJ, Feb. 14, 2007 at 22, col. 1 (Suffolk Dist. Ct.).
13. See Bethune Realty Co. v. Adams, 2002 WL 2018682 (App. Term 1st Dept.); see also Kaniklidis v. 235 Lincoln Place Housing Corp., 305 AD2d 546 (2nd Dept. 2003). Factors considered include: the intrusive nature of the noise, time of day, unpredictability and duration of the noise, and the number of similar complaints. See Stiglianese v. Vallone, 168 Misc.2d 446, 456 (Civ. Ct. Bronx Co. 1995), rev’d, 174 Misc.2d 312 (App. Term 1st Dept. 1997), rev’d 255 AD2d 167 (1st Dept. 1998).
14. 37 AD3d 284 (1st Dept 2007).
portable barriers with acoustical insulation, acoustical blanket insulation, and the testing of exhaust mufflers. Additional mitigation measures may also be adopted for “sensitive receptors” such as hospitals or schools.
16. See e.g., Kaniklidis, 305 AD2d 546; Bethune Realty Co., 2002 WL 2018682.
17. 2006 WL 1493113 (Sup. Ct. N.Y. Co.).
18. 12 Misc.3d 26 (App. Term 1st Dept. 2006), aff’d 38 AD3d 474 (1st Dept. 2007).
19. NYLJ, May 18, 2007 at 22, col. 1 (Sup. Ct. N.Y. Co.).
20. 2006 WL 3228399 (N.Y. City Civ. Ct.).
21. 2005 WL 1226130 (App. Term 1st. Dept.).
22. 2006 WL 2620534 (N.Y. City Civ. Ct.).
23. People v. Bender, 2007 WL 258290 (Crim. Ct. N.Y. Co.).