In a recent case that will be of interest to anyone who has ever wanted to bang on the wall between his or her apartment and the one next door and shout at the neighbors to keep it down, the New York Supreme Court found insufficient evidence to warrant a preliminary injunction in a noise-related lawsuit brought by a co-op shareholder against her neighbors and the co-op itself.

According to the suit, plaintiff Annette Williams claimed that since January 2011, her neighbors, the Whitakers "engaged in a pattern of conduct which has caused or allowed excessive noise and disturbances to emanate from their apartment and disturb, annoy, and harass her such that it interferes with her rights, comfort, and peaceful enjoyment of her apartment." Williams also named Esplanade Gardens Inc., the co-op corporation, as an additonal defendant.

The claims in this case were based on plaintiff’s contention that the occupants of the neighboring apartment consistently created excessive noise and disturbances, including loud hammering, excessive thumping, dragging of furniture, dropping objects on the floor, heavy walking, heavy objects rolling, animal barking, and continuous tapping.

In seeking a preliminary injunction, Williams submitted an affidavit describing her neighbors’ allegedly noisy and offensive behavior; a notice of default that the co-op had sent to the neighbors based on the allegedly excessive noise; and a daily log Williams kept in which she recorded the dates, times, and descriptions of noise incidents and other alleged conduct over a period of several months.

He Said, She Said

The Whitakers denied that they engaged in the types of conduct that Ms. Williams described. They claimed that it was Williams herself who persistently displayed angry, uncivil behavior towards them, such as threatening their safety, claiming to hear imaginary noises, taunting them, calling the police repeatedly for no reason, and engaging in loud screaming. The Whitakers contended that Ms. Williams’ log lacked credibility because it contained demonstrably untrue entries, such as hundreds of incidents of "barking" coming from the Whitakers' apartment, although the Whitakers did not own a dog or any other pets. The Whitakers also submitted affidavits from five other nearby residents who were non-parties to the litigation, denying that the Whitakers were responsible for any noise and characterizing them as peaceful, model residents.

The co-op itself also provided evidence that following a prior complaint by Ms. Williams, the Whitakers had taken agreed-upon steps to reduce the noise from their unit, such as carpeting the floors and installing a padded toilet seat cover. The co-op argued that that the Business Judgment Rule prohibited judicial inquiry into the co-op board's actions in connection with Williams’ allegations because the board addressed her complaints in good faith, in the exercise of honest judgment, and a manner consistent with legitimate corporate purposes.

An Insufficient Level of Proof

Based on the Whitakers' evidence and the sharply disputed facts, the court found that the plaintiff had not made a sufficient showing to be awarded a preliminary injunction. Ms. Williams’ pincipal claim in the litigation was that the warranty of habitability had been breached. The court held that “to establish a breach of warranty of habitability based on a noise violation, a plaintiff must show that the alleged noise was ‘so excessive that the plaintiff was deprived of the essential function that a residence is supposed to provide.’… There should be adequate proof of a continuous violation of the noise codes.” Given the “considerable factual disputes concerning the level of noise,” the court could not reach such a conclusion. The same factual disputes precluded the court, from concluding at this stage of the case that the alleged noise “caused a substantial and unreasonable interference with [plaintiff’s] right to use her apartment” so as to constitute the tort of nuisance.

Ira Brad Matetsky is a partner with the Manhattan-based law firm of Ganfer & Shore in the Commercial Litigation, Cooperative & Condominium Law and Employment & Labor Law practice groups.