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Adam Leitman Bailey, P.C. Successfully Defends Noise Nuisance Litigation, Compels Plaintiffs to Withdraw Case

By Adam Leitman Bailey


Adam Leitman Bailey, P.C. discusses the case at hand

Adam Leitman Bailey, P.C. prevailed for its clients in noise nuisance litigation, compelling the plaintiffs to withdraw their case with prejudice, and without the clients being required to pay even a dime.

Adam Leitman Bailey, P.C. represented the owners of a full-floor, combined unit in a condominium building located on Manhattan’s Upper East Side. The plaintiffs, owners of the unit one floor below, filed suit in Supreme Court, New York County, alleging that the clients were responsible for making unreasonable and intolerably loud noises starting as early as 6:30 or 7:00 a.m. on weekend mornings. According to the plaintiffs’ complaint, such noises included the sounds of jumping up and down, yelling and screaming, playing of sports (like soccer, hockey, or wrestling), banging, thumping, running, heavy footsteps and commotion. The plaintiffs retained an acoustical expert, who took measurements allegedly showing that the levels of noise measured in the plaintiffs’ apartment and coming from the clients’ apartment to be more than 400 percent louder than the ambient noise in plaintiffs’ apartment. Plaintiffs alleged that such levels of noise constituted violations of the New York City Noise Code. Plaintiffs sought injunctive relief to halt the alleged noise nuisance, damages based on the alleged diminution in value of the plaintiffs’ apartment, and punitive damages. Plaintiffs also sued the condominium board for allegedly failing to enforce its own rules.

At approximately 2:30 a.m. the morning after plaintiffs filed suit – but prior to the time when the Clerk of Court made the electronically-filed complaint available for public viewing – an article appeared in the New York Post entitled “Neighbors’ rowdy kids won’t stop playing hockey above our million-dollar pad: suit.” The New York Post article quoted allegations taken from the plaintiffs’ complaint, allegations that the clients contended were false and defamatory.

Adam Leitman Bailey, P.C. mounted the strongest possible defense, not only denying the plaintiffs’ allegations of noise nuisance, but asserting a counterclaim for defamation. The defamation counterclaim was based on a novel theory that the attorneys for the plaintiffs, acting as authorized agents, had published false allegations about the clients to the New York Post before any court papers had been made publicly available or served. The counterclaim further alleged that one of the two clients had acquired and maintained a reputation for providing excellent and outstanding service in the investment banking and advisory field, and that plaintiffs’ false and defamatory allegations could injure his professional reputation.

The filing of the counterclaim proved immediately effective as the plaintiffs promptly fired their attorneys for getting them embroiled in defamation litigation and engaged new counsel. For a brief time, the parties agreed to cooperate and jointly contributed to a limited scope of soundproofing work to minimize any noise. Predictably, however, the plaintiffs claimed to be unsatisfied with the noise reduction measures and resumed litigation. Plaintiffs’ ongoing complaints lacked credibility because the clients had relocated to temporary housing while soundproofing work was performed and intended to purchase a new home.

Plaintiffs filed a motion to dismiss the clients’ defamation counterclaim on the grounds that the statements made to the New York Post were privileged as a fair report on litigation. Plaintiffs also made it clear that they expected the clients to offer tens of thousands of dollars to settle rather than oppose the motion.

Once again, Adam Leitman Bailey, P.C. made the strongest possible response by submitting a voluminous opposition to the motion to dismiss together with a cross-motion to dismiss plaintiffs’ noise nuisance complaint. With respect to defamation, Adam Leitman Bailey, P.C. introduced records from proceedings in federal court in which the New York County Clerk had been ordered to make new electronically-filed complaints available to the public immediately, ending the Clerk’s prior practice of maintaining the new case filings in secrecy for hours or days pending internal review and processing. Based on those federal proceedings, Adam Leitman Bailey, P.C. was able to argue persuasively that plaintiffs’ publication of their false allegations to the New York Post before there was any publicly filed complaint, and before process had been served, did not enjoy the privilege that would normally protect a fair report of litigation from liability for defamation.

With respect to the alleged noise nuisance, Adam Leitman Bailey, P.C. made a multi-pronged attack. First, Adam Leitman Bailey, P.C. submitted a deed showing that the clients had sold their condominium apartment for nearly twice the price they had paid for it several years before. (Adam Leitman Bailey, P.C.’s transactional attorneys represented the clients on the sale.) Based on the deed of sale, Adam Leitman Bailey, P.C. was able to argue that plaintiffs’ request for injunctive relief should be dismissed because it had become moot, and also that plaintiffs could not establish any damages as a matter of law because the value of plaintiffs’ apartment had gone up, not down, following the clients’ sale at a substantially higher market price. Second, Adam Leitman Bailey, P.C. demonstrated that plaintiffs failed to state a cause of action for private nuisance because every court to rule on the issue had held that noises that are incidental to normal occupancy in New York City (heavy footsteps, snoring, using a dishwasher, and children running around, playing and generally making noise) do not give rise to a claim for private nuisance as a matter of law. For good measure, Adam Leitman Bailey, P.C. included citation to a trial court decision in which the court had ruled that plaintiff’s acoustical consultant could not be admitted as an expert witness, and that a similar acoustical report by that consultant was inadmissible because the consultant was not competent to testify whether any level of noise constituted a violation of the New York City Noise Code. Finally, Adam Leitman Bailey, P.C. argued that plaintiffs could not assert claims against its clients as third-party beneficiaries of the condominium’s by-laws, and that no conduct alleged in the complaint would support the plaintiffs’ claim for punitive damages.

Adam Leitman Bailey, P.C.’s vigorously argued motion papers had the desired effect. Rather than attempt to respond to the motion papers, the attorneys for plaintiffs approached Adam Leitman Bailey, P.C. to ask if all claims and counterclaims could be dropped without any cash settlement being made. With the clients’ consent, the deal was made and the litigation was quickly settled with mutual releases exchanged and no monetary compensation paid to the plaintiffs.

Adam Leitman Bailey, John M. Desiderio, and Scott J. Pashman represented the condominium unit owners on behalf of Adam Leitman Bailey, P.C.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS