Co-op and condo boards and landlords often receive complaints from residents about excessive noise or vibration caused by the residents of an adjoining apartment. Sometimes a friendly request to keep the noise down, or a stern warning from management, is sufficient to address the problem. In more serious cases, the situation can wind up in court, as in O’Hara v Board of Directors of Park Avenue & Seventy-Seventh Street Corp., 2022 N.Y. App. Div. LEXIS 3781, 2022 N.Y. Slip Op. 03872 (1st Dep’t June 14, 2022).
The plaintiffs in this action alleged that “unreasonable noise and stomping” by children living in the cooperative apartment above theirs “adversely affected [one of the plaintiffs’] health and created structural cracks in the walls and ceiling of their unit.” They further alleged that the Board of Directors failed to investigate and address the noise and structural damage.
The court held that plaintiffs had a potentially valid claim for nuisance against the upstairs neighbors, based on their allegations of unreasonable noise and physical damage. However, the court rejected plaintiffs’ claim against the neighbors for breach of their proprietary lease, because nothing in the neighbors’ lease indicated that other tenant-shareholders were intended to be third-party beneficiaries.
Plaintiffs also sued the cooperative board for allegedly failing to investigate their noise complaints. The court rejected plaintiffs’ claim for breach of fiduciary duty based on this alleged failure, even though plaintiffs alleged they were being treated differently from other shareholders, because plaintiffs did not “allege that, in refusing to investigate, the directors were acting outside their official capacity.”
However, plaintiffs were allowed to proceed with a claim that the Cooperative breached plaintiffs’ proprietary lease, which requires the Cooperative to “maintain all structural parts of the building, including the apartment’s walls and ceiling.” The Cooperative sought to rely on an exculpatory provision of the lease, which absolves the Cooperative from responsibility for acts by other shareholders. Rejecting this argument, the court observed that any owner of a multiple dwelling in New York City has a non-delegable duty under the Administrative Code to maintain the building in good repair. This duty applies regardless of who or what caused damage to the structural elements of the building. However, the court agreed with the Cooperative that the same exculpatory provision required dismissal of plaintiffs’ claims against the Cooperative predicated upon excessive noise from the upstairs apartment, to which the Administrative Code provision did not apply.
Plaintiffs also asserted claims against the Cooperative for breach of the warranty of habitability and warranty of quiet enjoyment. These claims were dismissed with respect to the noise issue, because “the allegations concerning the noise do not establish that the noise was so excessive that it deprived plaintiffs of the essential functions of a residence.” With respect to the property damage issue, though, “the allegations concerning the Co-op defendants’ refusal to repair the structural cracks in the ceiling and walls state[d] a claim for breach of the warranty [of habitability], since structural cracks could give rise to a hazardous condition of the building.”