Occupying a dense city like New York can make for strange bedfellows. Parties that wouldn't ordinarily mesh often must do so simply for the sake of space being at such a premium. And sometimes it works. For instance, The Odd Couple is a beloved institution for reasons beyond a nation's enduring love for Matthew Perry.

On other occasions, however, it does not, and fallout can be arduous. As reported in The Daily News on March 27, an Equinox fitness club that occupies the first three floors of the high-end Barbizon condominium tower on Manhattan's Upper East Side has recently become the target of residents' complaints. According to a Manhattan Supreme Court lawsuit against the gym, the routine clanging of medicine balls and weights by both trainers and members regularly reaches decibel levels that exceed the city's limit, providing those who live on the floors above with headaches both figurative and literal.

So what happens when a commercial tenant finds itself at odds with the condominium dwelling with which it shares an address? Is eviction a viable option? How best can a compromise be reached? And how do parties with such diametrically opposed interests end up coexisting in the first place?

Bring the Noise

Noise is both one of the most common issues to drive a wedge between neighbors, and also one of the most difficult to deal with. What constitutes “too loud” is quite subjective.

“There are infrequent instances, when decibel levels consistently exceed maximum limits allowed by the city noise code, that the courts will, as a last resort, order a lease termination and eviction,” says Steve Troup, an attorney and partner with the law firm of Tarter Krinsky & Drogin in New York City. “But it is rare that a commercial tenant will be evicted over quality of life issues. Judges tend to give a noise complaint short shrift, basically saying something along the lines of, 'this isn't Kansas.' Judges hate to deal with these things, and in New York City, commerce is king. Thus, mediation is more commonly a viable way to resolve these disputes.”

In this Barbizon versus Equinox dust-up, according to the Daily News piece, the residents of the condo tower had commissioned a noise study, which asserted that noise reverberations from the gym could reach 68 decibels in the residential units directly above – a blatant violation of the city's 10-decibel daytime limit. These noise studies are a frequent recourse taken by neighbors convinced that their quality of life is being infringed upon, in effort to prove that they're not simply over-sensitive to sound.

Dennis H. Greenstein, an attorney with the New York office of Seyfarth Shaw LLP, says that excessive noise basically boils down to a health and safety issue. “Boards are required to investigate, which may necessitate the hiring of an acoustic engineering company in there to go in and confirm that there is, indeed, a problem. Should one present itself, it needs to be abated by the delinquent party.”

Silencing Dissent

As the situation in question has yet to resolve itself, one can only speculate as to how the parties will present their cases and which will be deemed to have been in the right. There are documented ways in which these situations usually play out, however, depending on how Equinox arrived in the building in the first place, and to whom the gym is beholden via lease.

“Assuming for now that the Equinox lease is directly with the condominium, the board would have the right to evict should the commercial tenant be found to have been in breach of the lease,” explains Stewart Wurtzel, a partner with Tane Waterman & Wurtzel, P.C., a law firm in Manhattan.  “Usually, commercial leases will have requirements that the business not do anything that interferes with the comforts of neighbors nor fails to comply with all relative local code provisions. If this is the case, the condo can get relief from the club in the form of an eviction proceed.

“It becomes more complicated if the space is contained in the commercial unit of a condominium and that commercial owner leases the space to the gym,” he continues. “In that scenario, the condo generally would not have the right to commence an eviction action, and they would be forced to go to the Supreme Court to get an injunction against the tenant and the unit owner from violation the by-laws, which would typically provide restrictions on activities that violate local law or create a nuisance.”

Greenstein finds that, in many cases, should a tenant fail to comply with bylaws or municipal ordinances, the unit owner will cooperate with the bereaved party. “The owners often do not want to be put into default because their tenants are not complying with the law or the bylaws of the proprietary lease,” he says.

In other cases, however, should the commercial lease have been entered into between the tenant and the developer or a sponsor, things can be more difficult, according to Troup. “These parties tend not to care about residents' happiness, and only seek to maximize their profits. When the commercial lease is drafted and negotiated by the board, using competent counsel, provisions are more frequently included to deal with noise issues.”

What's Left?

When push comes to shove, there is little upside for a commercial tenant to be embroiled in a drawn-out dispute with those residing upstairs. “Most of the time, tenants look to mitigate the circumstance leading to the complaints, because it does their business no good to be involved in litigation with landlords, immediate neighbors and potential customers,” says Wurtzel. “Most businesses have invested substantial money in the construction and build-out costs, and rather than risk losing that, or potentially being shut down as a nuisance, reasonable adjustments can be made to the premises to improve on the conditions. Noise dampening insulation can be installed. Music can be lowered or eliminated during certain hours. I am not aware of, and have never personally prosecuted, a case which resulted in an actual eviction of a business because of noise.”