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Web address: http://www.nylj.com
VOLUME 235—NO. 40
WEDNESDAY, MARCH 1, 2006
COOPERATIVES
AND
CONDOMINIUMS
BY RICHARD SIEGLER AND EVA TALEL
Noise and the Warranty of Habitability
N
ew York Real Property Law
(RPL) §235-b, implies a
covenant (or warranty) of habitability in every residential lease.
The statute deems these leases to be a
sale of shelter and services by the landlord,
who warrants that the premises are fit
for human habitation, the condition of
the premises is in accord with the uses
reasonably intended by the parties and
tenants are not subjected to conditions that
are dangerous, hazardous or detrimental to
their life, health or safety.1 This warranty
cannot be waived or overruled by any
lease provision.
The warranty of habitability is applicable
whenever a landlord-tenant relationship
exists. Courts have declined to extend the
statute to condominiums, where no such
relationship exists,2 but have applied its
protections not only to rental apartments,
but also to co-op apartments, where the
proprietary lease creates a landlord-tenant
relationship.3 Co-op boards should therefore
take remedial action in response to legitimate tenant-shareholder complaints that
are covered by the statute, or risk exposure
to court ordered injunctions requiring
remedial work, loss of revenue from rent
abatements and liability for a successful
tenant-shareholder’s legal fees.
Excessive Noise Hazardous to
Health
Courts generally use this statute to
protect tenants from obvious apartment
defects or lack of services such as water
damage, rodent infestation and insufficient
heat and plumbing facilities.4 Recently,
however, it has been shown that excessive
Richard Siegler is a partner in the firm of
Stroock & Stroock & Lavan and is an adjunct
professor at New York Law School. Eva Talel
is also a partner in Stroock & Stroock & Lavan,
specializing in litigation involving co-ops and
condominiums. David Koshers, a New
York Law School student, assisted in the preparation of this article. Stroock & Stroock is counsel
to the Real Estate Board of New York.
Excessive and Continuous
Richard Siegler
Eva Talel
and continuous noise can be hazardous
to physical and mental health and can
contribute to a reduced quality of life.5
Therefore, notwithstanding a historical
wariness to find noise complaints actionable,6 courts are beginning to extend the
warranty of habitability to cover excessive
and unreasonable noise disturbance. New
York City administrative agencies have also
responded to the issue of excessive noise.
The New York City Building Code regulates
permitted noise levels within buildings.7
And the New York City Noise Code was
recently amended8 to enhance residential
tenant protection from noise generated by
sources outside an apartment, including
construction and mechanical equipment
noise. However, because noise is inevitable
in a large, crowded city such as New York,
not every noise complaints is entitled
to relief. Courts and legislatures have
struggled with how to best balance this
inevitably with affording apartment
occupants recourse for legitimate excessive
noise complaints.
This column examines the warranty of
habitability, focusing specifically on noise.
We discuss case law establishing when
noise that penetrates into an apartment
constitutes a breach of the warranty, and
look at noise created by or attributable to
actions of the co-op, as well as noise caused
by tenant-shareholders and third-parties.
We also explore the remedies available for
breach of the warranty of habitability, and
conclude with recommendations for co-op
boards and managers on how to best deal
with noise problems.
The First and Second Departments of the
Appellate Division agree that for noise to
constitute a breach of the warranty of
habitability, the aggrieved party must
demonstrate unreasonable, excessive and
continuous noise.9 Ordinary household
noise, is not sufficient to establish a
breach.10 Courts have also refused to extend
the warranty to noise created by young
children, heavy walking, banging and
noise from a washer/dryer from the
apartment above.11
Whether noise is sufficiently “excessive
and unreasonable” to sustain a claim may be
established by sound testing. A claim can
also be established by an aggregate of factors
such as the intrusive nature of the noise,
time of day, unpredictability and duration
of the noise, and the number of similar
complaints.12 Tenant-shareholders must
demonstrate the extent of the breach and
the manner in which it impairs their health,
safety and welfare or the essential functions
that a residence is supposed to provide.13
The tenant-shareholder must further
show that the co-op had adequate notice
of and failed to effectively remedy the
excessive noise.14 Notice can be actual or
constructive, but need not be in writing.15
Additionally, the tenant-shareholder must
reside in the apartment at the time of
the complaints16 and must provide reasonable access to the co-op to correct the
conditions.17
Noise Attributable to the Co-op
Co-ops may breach the warranty of
habitability by permitting excessive noise to
emanate from building equipment and
appliances. Breaches are more likely to
occur when the utilities are in close
proximity to a residence. For example, in
River Terrace Apartments, Inc. v. Robinson,18
the tenant-shareholder succeeded on a
breach of warranty of habitability claim
where loud and disruptive noise emanated
from new (and noisier) equipment installed
by the co-op in an adjacent laundry room.
The co-op failed to remedy the noise,
NEW YORK LAW JOURNAL
despite repeated oral and written
complaints as well as an engineer’s report
confirming elevated sound levels.
Similarly, in Lockner v. 670 Apartments
Corp, plaintiff succeeded in a breach of
warranty action against his co-op based
on excessive noise and vibration from the
boiler and other equipment beneath his
residence, which produced noise levels that
violated applicable law.19 The co-op was
ordered to install sound insulation and
comply with the New York City Building
Code. Courts have also found liability for
breach of the warranty of habitability where
a building’s noisy heating system disturbed
tenants20 and where an unmaintained roof
exhaust fan caused continuous noise.21
Co-ops may also cause excessive noise
when they engage in significant demolition
or construction work. In Forest Hills No.1
Co. v. Schimmel,22 tenants were subjected to
loud noise from the landlord’s extensive
remodeling and construction work. The
court found that the conditions were
detrimental to the tenants’ life, health and
safety, and frustrated the reasonable use of
their premises. However, in Mantica R Corp.
NV v. Malone,23 while the rental landlord’s
construction and demolition noise technically violated the warranty of habitability,
the court awarded a nominal rent abatement of six cents per month. The court
explained that the tenant knew that
construction would take place, that the rent
charged for the apartment had taken such
construction into account, and the tenant’s
good faith was questionable because he
began to withhold rent before the landlord
began construction.
Courts are mindful that, because of the
unique nature of co-ops, the warranty of
habitability cannot be applied to co-ops in
precisely the same way as it is applied to
landlords of rental property. A co-op board
wears two hats. It is in essence a landlord.
But, at the same time, as representative of
its shareholders who are occupants of the
co-op property, the co-op board is responsible for balancing individual and collective
interests. As a result, under the business
judgment rule, courts should defer to the
decisions of co-op boards where their
actions are taken in good faith, within
their authority and in furtherance of the
co-op’s interests.
In a 1992 decision in 29-45 Tenants
Corp. v. Rowe,24 the tenant-shareholder
contended that the co-op breached the
warranty of habitability by depriving him of
the use of his terrace at various times over a
three-year period by using the terrace
as a staging area from which to perform
building-wide repairs. Under the proprietary lease, the tenant’s use of the terrace
was subject to the co-op’s right to make
repairs. While acknowledging that the
warranty applies to co-ops, the court relied
on Levandusky v. One Fifth Avenue Apt.
Corp.25 and the business judgment rule it
WEDNESDAY, MARCH 1, 2006
established for review of co-op board
actions, and dismissed plaintiff’s claims,
holding that the court could not disturb the
board’s business judgment as to how to
effectuate repairs. The court explained that:
“Being a member of a cooperative is very
different from being a rental tenant.
[Plaintiff] is a part owner of the building
[and a]n owner cannot be given financial
compensation against himself….”26
However, in River Terrace Apartments,27
where one shareholder, whose apartment
adjoined the building’s laundry room, bore
the brunt of the building’s new (but noisier)
laundry equipment, the court rejected the
co-op’s business judgment rule defense—
that it was acting in the best interests of the
majority of shareholders—to a breach of
warranty claim. The board admitted that
installation of the new laundry equipment
caused a substantial increase in the noise
levels in plaintiff’s apartment and that it
refused to alleviate the noise because it
would be costly.
More recently, in a 2005 case, 315-321
Eastern Parkway Development Fund Corp. v.
Wint-Howell,28 the court recognized that
co-op board decisions for the benefit of
the majority of shareholders should not
fall within the purview of the warranty
of habitability. The court rejected the
tenant-shareholders’ claim under the
warranty of habitability, that the co-op was
responsible for inconvenient conditions—
insufficient alternative kitchen and bathroom facilities—created by a building-wide
renovation project. The court found no
evidence that the board acted in bad faith
or without authority and further found that
the conditions were the result of a project
voted on and approved by the co-op board
from which all shareholders benefited.
Relying on Rowe, the court carved out
an exception to strict adherence to the
warranty of habitability where a co-op acts
in good faith and to benefit the majority of
shareholders and their investment in the
building, and urged that courts generally
determine the appropriateness of applying
the warranty of habitability to co-ops on a
case-by-case basis. It is likely that future
court decisions will, and should, head in
this direction.
Where an excessive noise condition in
an apartment is caused by another tenant in
the building, the co-op may still be liable for
a breach of warranty claim. In Kalikow
Properties v. Modny,30 the Appellate Term,
First Department held that the landlord’s
failure to restrain a tenant from causing
excessive and continuous noise that entered
a neighbor’s apartment, or to enforce a lease
requirement that apartments be carpeted,
was a breach of the warranty of habitability.
The tenant was awarded a 25 percent
rent abatement.
Similarly, in Nostrand Gardens Co-op v.
Howard,31 the Appellate Division, Second
Department held that the co-op breached
the warranty of habitability by failing to
remedy, after repeated notice, excessive
noise that continuously penetrated into an
apartment from a neighboring apartment
throughout the late night and early
morning hours, and affirmed a 50 percent
rent abatement.
The First Department has recognized
that the warranty of habitability is statutory,
and can therefore apply to conditions
beyond a landlord’s control. In Sutton
Fifty-Six Company v. Garrison,32 plaintiff
rented an apartment advertised as having
two bedrooms, with the window of the
second bedroom being flush with the
property’s lot line. The plans submitted by
the landlord’s predecessor in interest and
approved by the New York City
Department of Buildings labeled the space
as a “dressing room,” which did not require
a window. Thereafter, a new building
was lawfully erected, blocking the second
bedroom’s lot line windows. Although the
landlord had no ownership interest or
involvement in the construction of the
adjacent building, which the court labeled
as the “culprit,” the court sustained
a warranty of habitability claim against
the landlord.
Similarly, in Itskov v. Rosenblum, the
Appellate Term, First Department awarded
the subtenant of a condominium unit owner
a rent abatement of 25 percent, for severe
and “vexatious” noise and vibration caused
by jackhammering and other construction
in the building, over which the unit owner
had no control.33
Other Tenants, Third Parties
Breach of the Warranty
The warranty of habitability may extend
to conditions beyond the control of a
landlord or co-op board, even those they
have not caused. Courts reason that tenants
should not be required to go from apartment
to apartment, or into nonpublic landlordcontrolled areas, looking for the source of
noise. In Wortman v. Solil Management
Corp.,29 the Appellate Division, First
Department affirmed a rent abatement
award where loud and offensive noises
entered the tenant’s apartment from an
unidentified place within the building.
Typically, courts award an abatement in
maintenance charges for a breach of the
warranty of habitability. Tenants cannot
recover property damages for breach of the
warranty.34 The amount of the abatement
depends on the nature, time period and
severity of the breach, taking into consideration the co-op’s good faith actions to
remedy the situation. Abatements for
excessive noise have ranged from 5 percent
to 50 percent. A court does not require
expert testimony or specific findings to
determine the amount of an abatement.
NEW YORK LAW JOURNAL
Attorney’s fees are also recoverable, where
the judgment for breach of the warranty is
substantially favorable to a tenant. Under
most proprietary leases in New York, a
co-op is also entitled to recover attorney’s
fees for efforts expended in collecting
unpaid maintenance charges, where assertion of the breach of warranty claim as a
defense is denied or ruled insubstantial.
In addition, where noise generated by a
neighboring tenant is the source of the
problem, the co-op may have recourse
against the neighboring tenant by way of an
indemnification claim, as well as to recover
its attorney fees from the defaulting tenant.
Recommendations
Where a noise problem persists and the
co-op has notice, it should take action
within a reasonable period of time. A
logical first step would be to determine
whether the noise complained of is
excessive or unreasonable or if it is merely a
complaint by an unreasonable tenant-shareholder. The board may seek to determine
the bona fides of the complaint by having
the noise level measured by professional
sound testing and hiring acoustical experts
to evaluate and, if necessary, help abate the
problem. The co-op should maintain
good records of its diligence in addressing
noise complaints, including records of the
co-op’s attempts to obtain access to the
complainant’s apartment in order to
evaluate and remediate the problem.
Co-op boards should consider replacing
old appliances and utilities with newer
and quieter models. This equipment must
also be regularly maintained. Additionally,
equipment should be placed where it
will least disturb tenants. For example,
washers and dryers can be placed in the
basement or a similar designated area
within each apartment. When doing capital
improvement projects, co-ops should
consider proper insulation and soundproofing to limit noise from penetrating into
residences.
Most importantly, the co-op should
address noise concerns in its proprietary
lease, house rules and apartment alteration
agreement. In a typical co-op, a lessee who
repeatedly violates its provisions may be in
default and subject to lease termination.
Rules can be specific so as to cover a lessee
who is the perpetrator of excessive noise or
their actions might fall more generally
under objectionable conduct.
Typical house rules provide that no
lessee shall make or permit any disturbing
noises or do or permit anything to be done
which might interfere with the rights,
comfort or convenience of other lessees.
House rules should cover appropriate times
and hours for the playing of musical
instruments, radio or television as not to
disturb other occupants. Additionally,
house rules can provide that a certain
WEDNESDAY, MARCH 1, 2006
percentage of an apartment must be carpeted, and allot hours and days for construction
or repair work. The use by co-ops of apartment alteration agreements is strongly
encouraged. Such agreements can regulate
demolition and construction noise, require
the retention by the shareholder performing
the alteration of an acoustical engineer
to ensure that the proposed work will
not create a noisy condition when the
alteration is completed and require the
shareholder to remediate noise that results
from the completed alteration.
Co-ops should also be mindful of New
York City’s two primary statutes addressing
permitted noise levels, the Noise Control
Code35 and the Building Code.36 The Noise
Control Code addresses and generally
prohibits unreasonable and excessive
environmental noise; it also sets sound
levels for exhaust and circulation devices,
and permitted time-frames for construction
and transport activities, and the use of
sound reproduction devices. Recent amendments to the Noise Control Code call
for compliance with noise mitigation
plans when any construction work is to be
undertaken by a corporation, which would
include a co-op.37
The Building Code applies to noise
within buildings. It specifies permissible
sound levels within a residential dwelling,
from noise generated by mechanical
equipment outside the dwelling. The Code
also specifically requires sound insulation in
floors, partitions and walls, and sets noise
and vibration limits for equipment like
pumps, fans, compressors and elevators in
close proximity to a residence.
Conclusion
Noise in the realm of the warranty
of habitability remains a largely unsettled
area. At times, courts generously protect
tenants where noisy conditions persist.
Yet in other instances, courts do not view
noise as extraordinary or serious enough
to affect a person’s life, health or safety.
Notwithstanding this uncertainty, co-ops
boards should take noise complaints
seriously and respond promptly.
••••••••••••••
•••••••••••••••••
1. N.Y. Real Property Law §235-b (McKinney Supp.
2006).
2. Frisch v. Bellmarc Management Inc., 190 A.D.2d 383
(1st Dept. 1993). Courts have developed different theories to permit condominium unit owners to recover for a
board’s failure to make repairs, permitting claims to be
asserted under the Housing Maintenance Code (See, e.g.
Pershad v. Parkchester South Condominium, 174 Misc. 92
(Civ. Ct. N.Y. Co. 1997), and for breach of the condominium bylaws repair obligation (See, e.g., Residential
Board of Managers of Century Condominium v. Berman,
N.Y.L.J. Dec. 15, 1993 at 22, col. 3 (Sup. Ct. N.Y. Co.),
aff’d, 213 A.D. 2d 206 (1st Dept. 1995).
3. Suarez v. Rivercross Tenants’ Corp., 107 Misc.2d. 135
(App. Term 1981). See generally, Richard Siegler and Eva
Talel, “Another Look at the Warranty of Habitability,”
N.Y.L.J., March 3, 2004 at 3, col. 3.
4. Park West Management Corp. v. Mitchell, 47 N.Y.2d
316 (1979). While this case involved a rental building,
not a co-op, generally cases dealing with rental buildings
are relevant to co-ops as well.
5.
Infrastructure
Division,
Committee
on
Environmental Protection, N.Y. City Council. Proposed
Int. No.397-A (2005).
6. See, e.g., Matter of Twin Elm Mgt. Corp. v. Banks,
181 Misc. 96 (Mun. Ct. 1943), (a young tenant’s piano
playing for about 12 hours daily was not a nuisance);
Elliman & Co. v. Karlsen, 59 Misc. 2d 243 (Civ. Ct. N.Y.
Co. 1969) (daily one-hour drum playing permitted);
Florence Realty Co. v. Shakespeare, N.Y.L.J., Aug. 12,
1977, at 12, col. 3 (Civ. Ct. N.Y. Co.) (daily six-hour guitar playing permitted); Justice Ct. Mut. Hous. Co-op. v.
Sandow, 50 Misc. 2d 541 (Sup. Ct. Queens Co. 1966)
(efforts of a co-op board to restrict the playing of musical
instruments to one and one-half hours per day per person,
and prohibiting any playing after 8:00 p.m. was arbitrary
and unreasonable).
7. See NYC Admin. Code §27-768, et seq.
8. See NYC Admin. Code §24-219, et seq., and New
York City Local Law 2005/113§10.
9. Bethune Realty Co. v. Adams, 2002 WL 2018682
(App. Term 1st Dept.); Kaniklidis v. 235 Lincoln Place
Housing Corp., 305 A.D.2d 546 (2nd Dept. 2003). This is
essentially the same standard applied by courts to determine whether noise disturbance constitutes an actionable
nuisance. See, e.g., 10 Warren’s Weed New York Real
Property §100.28 (2005).
10. Kaniklidis v. 235 Lincoln Place Housing Corp. See
Note 9.
11. Bethune Realty Co. v. Adams. See Note 9.
12. 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 A.D. 2d 167 (1st Dept. 1998).
13. Id.
14. Nostrand Gardens Co-op v. Howard, 221 A.D.2d
637 (2nd Dept. 1995).
15. Spatz. v. Axelrod Management Co. Inc., 165 Misc.2d
759 (Civ. Ct. Bronx Co. 1995).
16. Levintritt v. 520 E. 86th St., 266 A.D.2d 45 (1st
Dept. 1999), app. den, 94 N.Y.2d 760 (2000); Halkedis v.
Two East End Ave. Apartment Corp. 161 A.D.2d 281 (1st
Dept. 1990), app. den, 76 NY2d 711 (1990).
17. Marz Realty, Inc v. Reichman, N.Y.L.J., Jan. 30, 2002
at 23, col. 4 (App. Term 2nd Dept. & 11th Jud. Dists.).
18. River Terrace Apartments, Inc. v. Robinson, N.Y.L.J.,
May 27, 1998 at 27, col. 3 (Civ. Ct. N.Y. Co.).
19. N.Y.L.J., Feb. 28, 1995 at 29, col. 6 (Civ. Ct. N.Y.
Co.); cf. Protano v. 16 N. Chatsworth Ave. Corp., 272
A.D.2d 597 (2nd Dept. 2000).
20. Sussex Apartments, LLC v. Sei Young Choi, 2003
N.Y. Slip Op 51126U (1st Dept.).
21. Little v. Robinson, N.Y.L.J., July 15, 1992 at 22, col.
6.(Civ. Ct. N.Y. Co.), modified, N.Y.L.J., April 13, 1993
at 25, col. 1 (App. Term 1st Dept.).
22. Forest Hills No. 1 Co. v. Schimmel, 110 Misc.2d 429
(Civ. Ct. Queens Co. 1981).
23. Mantica R Corp. NV v. Malone, 106 Misc.2d 953
(Civ. Ct. N.Y. Co. 1981).
24. 29-45 Tenants Corp. v. Rowe, N.Y.L.J., Jan. 8, 1992
at 23, col. 4 (Civ. Ct. N.Y. Co.).
25. 75 N.Y.2d 530 (1990).
26. 29-45 Tenants Corp. v. Rowe, N.Y.L.J., Jan. 8, 1992
at 27, col. 3. See Note 24.
27. See River Terrace Apartments, Inc. v. Robinson,
N.Y.L.J., May 27, 1998 at 27, col. 3. See Note 18.
28. 315-321 Eastern Parkway Development Fund Corp.
v. Wint-Howell, 9 Misc.3d 644 (Civ. Ct. Kings Co. 2005).
29. Wortman v. Solil Mgmt. Corp., 217 A.D.2d 466 (1st
Dept. 1995).
30. Kalikow Properties, Inc. v. Modny, N.Y.L.J., May 2,
1978 at 5, col. 1 (1st Dept.).
31. Nostrand Gardens Co-op v. Howard, 221 A.D.2d
637. See Note 14.
32. Sutton Fifty-Six Co. v. Garrison, 93 A.D.2d 720 (1st
Dept. 1983).
33. Itskov v. Rosenblum, 7 Misc.3d 135 (App. Term 1st
Dept. 2005).
34. Halkedis v. Two East End Avenue Apartment Corp.,
161 A.D.2d 281, app. den, 76 N.Y.2d 711. See Note 16.
See also, 40 Eastco v. Fischman, 155 A.D.2d 231 (1st
Dept. 1989).
35. See NYC Admin. Code §24-201, et seq.
36. See NYC Admin. Code 27-768, et seq.
37. See New York City Local Law 2005/113 §10.
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