In this case, plaintiffs, the owner and the resident of a condominium apartment in Manhattan, seek damages and permanent injunctive relief based on their allegations that defendants have created a private nuisance by playing music too loudly. Plaintiffs move for summary judgment on liability, and also for permanent injunctive relief, and request that the case be set down for inquest or trial as to damages. Defendant 344 Bowery Retail LLC (Bowery), the landlord of defendant Santa Anna Restaurant Corp. (Sala), cross-moves for an order to compel disclosure and to preclude plaintiffs from offering certain evidence at trial.

Plaintiffs complain that employees of their downstairs neighbor, Sala, which has been operating as a restaurant and lounge since 1999, have been playing excessively loud music into the night thereby greatly disrupting and interfering with plaintiff Yamilee Bongo's sleep, health and her ability to enjoy her home. Sala is located on two floors of commercial space directly below plaintiffs' apartment. Plaintiffs assert causes of action for private nuisance and, in their first cause of action, seek permanent injunctive relief. In their second cause of action, plaintiffs seek damages. [*2]

As to the injunctive relief sought, in the complaint plaintiffs demand that defendants be enjoined from operating a nightclub from 10:00 p.m. to 4:00 a.m., unless or until they install soundproofing materials sufficient to completely prevent any sounds from emanating from Sala into plaintiffs' apartment. In their memorandum of law, plaintiffs request a permanent injunction that would prohibit the playing of music in Sala above certain sound levels that are described in section 24-231 of the Administrative Code of the City of New York (the Noise Code) and prohibit the operation of any sound system in Sala from 9:00 p.m. through 11:00 a.m.

As background, by order filed June 12, 2009, Justice Walter B. Tolub granted plaintiffs' request to preliminarily enjoin defendants from playing music above the sound levels described in the Noise Code, and directed a hearing in early August on the matter. On August 4, 2009, a hearing was held at which Justice Tolub instructed defendants to propose a plan to ensure that the Noise Code requirements were met. On November 9, 2009, the parties appeared before Justice Tolub concerning the preliminary injunction motion and a contempt motion made by plaintiffs. After an evidentiary hearing, Justice Tolub denied plaintiffs' application to enjoin defendants from operating Sala in the late evening and early morning hours and, finding only a minor violation of the injunction, denied plaintiffs' contempt motion.

Defendant Bowery, Sala's landlord, appeared in November 2009, after stipulating with plaintiffs to vacate a default judgment that had been granted on August 28, 2009, but did not participate in the November 9, 2009 proceeding before Justice Tolub. On March 16, 2010, Bowery was granted leave to amend its pleading to interpose a cross claim against Sala for contribution, contractual and common-law indemnification and for failure to procure insurance.

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact'" (People v Grasso, 50 AD3d 535, 545 [1st Dept 2008], quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (id. at 544; Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]). "If there is any doubt as to the existence of a triable issue, the motion should be denied" (F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186, 188 [1st Dept 2002]).

In support of her motion, plaintiff Bongo submits an affidavit in which she avers that she purchased her apartment, through Kahona Beach, LLC, from the building's sponsor in 2007 and, due to her extensive travel throughout 2008, did not then spend much time in the apartment, but thereafter moved in. Bongo avers that when she bought the apartment, she was unaware that Sala hosted private parties and operated as a nightclub on weekends, but soon learned that Sala employees regularly play loud music with a strong bass line audible in her apartment. Bongo chronicles her inability to fall asleep, nighttime awakenings, experiences with sound emanating from Sala and calls to Sala about noise from June 2009 through March 2010. Bongo avers that the level of the bass frequencies severely degrades her quality of life, and that in addition to hearing sound, she can feel vibrations from the music in her apartment. Bongo claims that the music disturbs her studies and has led to exhaustion, extreme stress, and physical harm and that as a result, she spends as much time away from her apartment as possible and has listed it for sale. Bongo feels that the noise problems [*3]must be disclosed to a purchaser, and that she therefore will be unable to obtain the apartment's true value from a buyer.

It is undisputed that Bongo provided access to Sala and defendant Lombardi, Sala's principal (together, the Sala Defendants), to enter her apartment on August 13, 2009 so that the Sala Defendants could prepare a proposal to ameliorate noise, as was directed by Justice Tolub. Bongo states that she does not know what, if any, work was done at Sala, but contends that nothing was done to change Sala's sound system and that no requests were made for access to her apartment to perform acoustical testing. Bongo contends that her expert's proposed solutions, such as installing adequate soundproofing and sound limiters on the sound equipment, have been ignored, but remarks that the instances of unbearable music have diminished since November 2009, and that the Noise Code violations are more infrequent now.

Plaintiffs submit a letter, dated February 27, 2009, written by her counsel and addressed to the Sala Defendants and Bowery. The letter addresses Bongo's complaints to Sala of "loud music blaring" and "Sala's insistence on piping loud music into [plaintiffs'] apartment from opening until closing at 4 a.m." (Pl. Exh. 6). Plaintiffs state that there was no response to the letter, and that with it, and through earlier contact with Bowery, Bowery was notified of the noise condition.

Plaintiffs also submit the affidavits and testimony of expert Alan Fierstein, who opines that he measured the sound levels at Bongo's apartment from April 28, 2009 through May 5, 2009, on May 9, 2009, and again from October 14, 2009 through November 2, 2009. Mr. Fierstein's opinion is addressed in some detail below.

In addition, plaintiffs provide the affidavit of Bongo's house guest, Mr. Carl Restivo, who avers that on July 8, 2009, Sala was playing loud music from 6:45 to 8:30 p.m., and that he called and asked a Sala employee to turn the music down, but that the music was not turned down until 10:50 p.m., and that at 12:05 a.m. he was awakened by vibrations and loud music again being played by Sala. Mr. Restivo states that he also called Sala on July 9, 2009, at 7 p.m., asking that the music be turned down, that Bongo called again at 9:15 p.m., and that bass vibrations could be felt throughout the apartment.

In opposition to plaintiffs' motion, the Sala Defendants argue that plaintiffs' real dispute is with the developer, which failed to install adequate installation. In addition, Lombardi avers that defendants responded to every one of Bongo's calls, and always turned down the music even if it was dinnertime background music that could barely be heard by Sala diners. Lombardi further avers that the Sala Defendants have never been given a violation for noise, and that they provided a noise amelioration plan when directed by the court, but that plaintiffs were not satisfied with the plan. Lombardi states that the Sala Defendants agreed to cooperate with plaintiffs' expert, who made various recommendations that they were able to follow, and that subsequent testing showed that Sala was within legal noise limits. Lombardi also notes that plaintiffs chose to purchase a unit in an up-and-coming neighborhood in "the city that never sleeps," and that Sala has been continuously operating in the same place for a long time, has not changed its operations and generates no unusual noise (Lombardi Op. Aff., ¶ 16 [internal quotation marks omitted]). Lombardi avers that any decrease in value in the plaintiffs' apartment is attributable to the economic downturn, and that it was upon the death of Bongo's father that she asked for consideration concerning noise levels.