When a young family of four sought Adam Leitman Bailey, P.C.’s help after suffering from unbearable noise and sound vibration, and a condominium Board unresponsive to their complaints, on the brink of trial, Adam Leitman Bailey, P.C. successfully spearheaded a joint settlement agreement with the Board and the owners of the apartment above the family to make substantial structural and design modifications to the floors and ceilings of the respective apartments in order to mitigate the noise and sound vibrations, and negotiated a settlement agreement with the Board to amend the bylaws of the building to reduce the risk that the clients and other unit owners would suffer from such severe noise issues, as well as improve the corporate governance of the building, bringing an end to the contentious litigation.
Shortly after moving into their apartment, the young family began hearing unbearable noises emanating from the apartment above them. The noises, which were described as the repeated boom of a bass drum, would happen unexpectedly at all hours of the day and night. The sudden starling effect of the noise was so loud that the family no longer found peace and comfort in their home, and guests who stayed in the apartment often called the police due the extraordinariness of the booming noise.
For almost a year, in the spirt of being “considerate neighbors,” the family attempted to resolve their issues amicably with the upstairs neighbors and the Board. Unfortunately, their complaints were repeatedly ignored as the family was unfairly labeled as being overly sensitive to noise.
The family was left with no other choice than to file suit against the Board and the upstairs neighbors, and turned to Adam Leitman Bailey, P.C. for help.
The attorneys recognized that the noises and sound vibrations their clients complained about were truly extraordinary, even under New York City standards. Taking a hands-on approach during the course of the litigation, the attorneys at Adam Leitman Bailey, P.C. immediately engaged a leading sound engineering and consulting firm and structural engineering firm to record and analyze the noises, and evaluate possible sources of the loud booming noises emanating from the upstairs neighbors’ apartment.
After analyzing the architectural plans of the building and performing inspections of the apartments, the engineers concluded that the source of the severe noise and vibration was caused by an illegal removal of a wall in the neighbors’ apartment. The engineers concluded that this wall had originally served to dampen sound and noise vibrations, and provide structural support to the building. The removal of the wall resulted in severe noise cascading through the floors of the apartment, and through the ceiling the family’s apartment.
Using their expertise regarding the New York City noise code, the attorneys were able to request an inspector from the Department of Buildings visit the apartment to observe the noise first-hand and identify possible noise code violations. The Department of Buildings performed a site inspection and agreed with the attorneys’ assessment, and immediately issued a noise code violation against the Building – a virtually unheard of penalty in a residential apartment. The violation was quickly swept under the rug by the Board, who paid the violation without making any effort to identify and resolve the source of the noise.
The attorneys at Adam Leitman Bailey, P.C. were relentless. After conducting numerous depositions of the parties and reviewing meeting minutes of the Board, the attorneys uncovered that the Board was aware of the illegality of the removal of the wall, but had done little, if anything, to hold the owner accountable, or compel the owner to reinstall the wall. Even worse, the attorneys discovered that one of the members of the Board had, in fact, personally benefited from the removal of the wall.
Notwithstanding these bad acts, the Board attempted to use the business judgment rule in defense of its actions, and moved for summary judgment.
Using their expertise in condominium and cooperative law, the attorneys at Adam Leitman Bailey, P.C. understood that while New York courts give a great deal of deference to a Board’s decisions, the repeated failure of this Board to take action related to the illegal removal of the wall, and the interpersonal nature of the Board member relating the illegal wall removal, was not one of those instances. The attorneys vigorously argued that the business judgment rule could not possible protect the Board’s decision given the unique facts and colored history associated with the history of the wall.
The judge agreed with the attorneys opposition to the motion, ruling in favor of the family, and denying the Board’s motion for summary judgment.
The case was assigned to a judge for trial.
Working side-by-side the sound and structural engineers, the attorneys were able to propose a solution to the Board and the upstairs neighbors to renovate the floors of the upstairs apartment, including the common space between the two apartments. The attorneys were also able to identify a modified design to the ceiling of their clients’ apartment. The combined solutions would work to substantially reduce the sound and noise vibration emanating from the neighbors’ apartment.
In addition to the renovations to the structure and design of the apartments and common spaces in the Building, the attorneys successfully proposed amendments to the bylaws of the building, that would prevent their clients and other families in the building from suffering from such noise and vibrations issues, and, at the same time, would improve the overall governance and functioning of the Board.
This multi-pronged strategy, persistence, and “we will not give up” attitude, employed by the attorneys at Adam Leitman Bailey, P.C., proved to be an overwhelming success for the clients. The upstairs neighbors agreed to substantially renovate the structure of the floor system in order to reduce the noise and sound vibration emanating from their apartment. The Board agreed to modify the common spaces of the Building, and permit the renovations to the floors of the upstairs neighbors, and the ceilings of the family’s apartment. Once these modifications are made, the noise and vibration will be mitigated, finally giving the family the quiet use and enjoyment in their apartment that they deserve.
The Board also agreed to amend the bylaws of the building to improve the corporate governance of the building, and mitigate the risk that unit owners would suffer from noise issues like those faced by their clients.
Adam Leitman Bailey, John M. Desiderio, and Joanna C. Peck represented the family in this case.