MORE ON "BAD NEIGHBORS" - WHAT TO DO WITH CONSTRUCTION NOISE

This noise case also illustrates the need to gather proper evidence and the high cost of litigation. Mere allegations will not always suffice and documents and experts can be needed to establish claims; and in this case, the cost of proving the allegations were probably higher than the amount of damages in issue.

Dollinger v United Eng'g Servs., PC, 2021 NY Slip Op 50516(U), Decided on June 3, 2021, City Court Of Mount Vernon, Seiden, J:

"Plaintiff brought this small claims proceeding for five thousand dollars ($5,000.00) alleging loss of profit based upon defendant's alleged violations of building permits and making excessive noise at a construction site located at 275 Washington Street, Mount Vernon, NY. Defendant failed to appear in this proceeding and the court held an inquest on April 23, 2021.

Plaintiff lives at 10 Claremont Place in Mount Vernon, New York and works from home. He does voice overs in his home recording studio. Plaintiff alleged that while doing construction work at 275 Washington Street in Mount Vernon, the defendant was making excessive noise and commencing work with drills prior to the time allowed on their building permit. Plaintiff alleged that the defendant operated a drill on weekends in violation of their permits. Plaintiff stated that his complaints to the Building Department and calls to the police shut the construction down on several occasions, however, the excessive noise occurred at least six or seven times. He alleged [*2]that defendant created an environment where he could not enjoy the peace and quiet of his home and workplace.

Here, plaintiff submitted several videos of the noise coming from the construction site. In the videos, defendant is either standing in his entry doorway or sitting in his home studio. The construction noise is heard clearly in every video. There is also a video of a police car on the scene. Plaintiff stated that he complained to the Mount Vernon Building Department and Mayor's Office on several occasions about the noise. He submitted email correspondence of his complaints with the Mayor's Chief of Staff Darren Morton, and Planning Administrator William Long. Plaintiff stated that the police arrived at the construction site on several occasions to shut down the construction because defendant was operating outside the scope of the permitted times and days.

To recover for loss of profits, plaintiff must demonstrate that the defendant either breached a contract or committed a tortious act (New Life Holing Corp. v Turner Constr. Corp., 2014 NY Slip Op 32590(U) [Sup. Ct. New York Co. 2014]). "Although the amount of such damages need not be proven to exactitude, they must be demonstrated with sufficient certainty, and cannot be speculative" (Id. citing Levine v American Federal Group, Ltd., 180 AD2d 575, 577 [1st Dept 1992]).

Plaintiff and defendant did not have a contractual agreement with one another. Accordingly, in order for plaintiff to recover damages for loss of profits, plaintiff must first establish that the defendant committed a tortious act. Here, based on the allegations raised and documentary evidence submitted, the Court finds that the evidence submitted by plaintiff failed to demonstrate that the defendant's work at the construction site amounted to the commission of a tortious act, namely a private nuisance.

The New York Court of Appeals has held that "one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is 1) intentional and unreasonable, 2) negligent or reckless, or 3) actionable under the rules governing liability for abnormally dangerous conditions or activities" (Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977]).

The reasonableness of conduct is measured by reference to the ordinarily reasonable person (Id. at 524). The temporary noises and annoyances that come with construction projects in urban/developed areas, without more, will not give rise to a nuisance claim (Celebrity Studios Inc. v Civetta Excavating, Inc., 72 Misc 2d 1077 [Sup Ct. New York Co. 1973]). However, "[a] contractor with a permit to 'excavate or build in the public highway, but who does that work or maintains it in a negligent and dangerous manner commits a nuisance'" (MacArthur Props., LLC v Metropolitan Transp. Auth., 61 Misc 3d 1204 (A) [Sup Ct. New York Co. 2017] (citing Hartman v Lowenstein, 90 Misc. 686 [1st Dept 1915]); see also Malerba v Warren, 108 Misc 2d 785 [Sup Ct. Suffolk Co. 1981] (defendant property owners guilty of private nuisance and liable for loss of income where they ignored town cease and desist orders and constructed illegal structure in violation of town building regulations).

In Celebrity Studios, a Manhattan rehearsal studio, where auditions and classes in the field of music are conducted, commenced an action against a construction company working on an adjacent lot. The studio alleged that dynamite explosions and vibrations coming from the site had created excessive noise and a nuisance, thereby impairing the income of the business and [*3]depriving the plaintiff of the quiet enjoyment of the premises. The court denied the studio's nuisance claim and held that even though plaintiff maintained a rehearsal studio affected by the sound and vibrations, it was in no essentially different position from hundreds of adjacent businesses, the smoothness of whose operations might also be impacted by the inconvenience. If all businesses in the area "were to be permitted the right to recover for all those construction noises, the scope of liability confronting any prospective builder would be so vast as to immobilize all areas of the city into permanent rigidity" (Id.) Accordingly, some degree of noise and discomfort is inevitable in an urban society and construction and demolition will be part of the daily scene. "The originator of noise cannot be held to varying standards dependant upon the identity and characteristics of his neighbor" (Id.).

In Mango Sound v 729 Acquisition LLC, 2006 NYLJ LEXIS 2187 [Sup Ct. New York Co. 2006], a film, video and tape-recording studio in Times Square complained that the noise and vibrations from construction of a new restaurant were substantially interfering with the recording, theater and production activities in its studios and that, as a result, it was suffering permanent loss of business. Plaintiff complained that the noise and vibrations from the construction site exceeded acceptable levels of New York City construction laws and constituted a nuisance. The studio sought a permanent injunction to prevent construction work during their hours of operation. The court, relying on the holding in Celebrity Studios, denied the plaintiff's motion. The court stated "[t]he fact that the plaintiff's business operation, involving sound studios, is particularly sensitive to and affected by such noise and vibrations does not, without more, mean that the construction is in violation . . .." (Id.) The court also noted that despite complaining that the noise exceeded acceptable levels, the plaintiff failed to submit any affidavits from sound experts or demonstrate that the construction site had been cited by the city authorities for any violation of any governmental rule or regulation relating to noise.

Employing the same rationale from the Celebrity Studios and Mango Sound cases, this court finds that plaintiff has failed to establish a private nuisance claim. The court is mindful that this construction project has been a very annoying and tiresome ordeal for plaintiff. Though he testified that the Building Department and Police shut the site down on several occasions because of permit violations, there were no building code violations submitted supporting these claims. The video of the police car at the scene, videos of the noise heard from his residence, and emails to city officials, without more, does not give rise to a nuisance violation."