Residential coop living comes with adjacent neighbors and the concomitant sounds of nearby use and occupancy. But how much “noise” is too much “noise” so as to amount to an actionable “nuisance”. As a recent case illustrates, every “noise” may not rise to the level of legally cognizable “nuisance”.

Richard L. Getty, a musician and the lessee of a cooperative apartment, brought a Small Claims action against Mike Tolentino and Laura Tolentino, the owners of a vertically adjoining cooperative apartment based upon loud music being played. Getty claimed the Tolentinos played loud music that constituted a nuisance and interfered with his ability to profit from an Airbnb deal.

The Tolentinos, one of whom was a musician, counterclaimed claiming that Getty played “satanic music” and of “construction noises”, and excessively rang the door buzzer, and banged on the floor constituting a nuisance that interfered with the Tolentino’s ability to prepare for musical performance and music lessons, resulting in the loss of profit from a sale of the cooperative apartment.

Mediation failed. And the Court held a trial.

At trial, Getty testified that he owned the cooperative unit that he purchased in 2002 for $40,000. In late 2019, early 2020, Getty heard noise, guitar playing, singing, and banging emanating from Tolentinos upstairs adjoining unit during the day into the evening up to 8:00 p.m. Getty left a note on Tolentinos’ door and later called the building management and the police. The police report stated the responding officer heard guitar playing and stomping after exiting the elevator on September 19, 2020, at 5:09 p.m. and Tolentino said he would stop playing for the night.

Getty put the unit on Airbnb for rental from December 20, 2020, to January 11, 2021, for $4,947 and found a renter that previously stayed in the unit. The potential renter in electronic correspondence raised the issue of noise from the neighbor on a previous stay and said he had to confirm with his wife. An hour and a half later, the potential renter backed out.

Getty made recordings on his phone of the music coming from Tolentinos’ unit, but they were not in a form that could be preserved in the record. He also testified he tried to sell his unit and hired a broker.

Getty said the noise prevented him from conducting Portuguese lessons.

A co-worker from the Metropolitan Opera testified that she had visited the Getty’s apartment several times in January and February of 2021 and heard the noises. She was interested in renting Getty’s unit but decided not to because of the noise.

The owner of the unit in the neighboring building, whose daughter owned a unit in Getty’s building, testified that she was in her daughter’s unit three times in the last year and heard noise and singing coming from Tolentinos’ unit.

The Tolentinos’ bandmate testified that they practiced Saturdays and Wednesdays from noon to 6:00 p.m. in Tolentinos’ unit playing acoustic guitars and listening to music. He heard banging from the ceiling of the unit below and heard the door buzzer ring for two minutes at a time. He also heard loud music and extended “Joker” laughing coming from Getty’s unit. He witnessed the Tolentinos make a recording of the noises coming from Getty’s unit. The Port Chester police responded, but no summonses were issued. The witness wanted to buy the unit from the Tolentinos and made an offer in March of 2020, but there was no written contract because the Tolentino told him not to buy the unit.

The parties agreed that the Cooperative Corporation’s rules prohibited subletting. The rules did not bar the playing of music. The “Joker” laughing continued for 55 minutes. The bandmate offered $40,000 to buy the unit.

Due to the COVID-19 pandemic restrictions, Getty had no music jobs booked and was unable to conduct lessons.

To recover for loss of profits, Getty was required to demonstrate that the Tolentinos either breached a contract or committed a tortious act.

According to a legal treatise: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance’. It has meant all things to all men”.

The elements of the tort of private nuisance are (1) an interference, substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a plaintiff’s right to use and enjoy the land, (5) caused by a defendant’s conduct.

The reasonableness of conduct is measured by reference to the ordinarily reasonable person. Apartment-house living in a metropolitan area is attended with certain well-known inconveniences and discomforts. The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling. Mutual forbearance and the golden rule should, but unfortunately in many cases do not act as the yardstick for the conduct of tenants in apartment houses. Reasonable consideration of the comforts of neighbors should be exercised by the occupants. 

Devotion to the development of one’s musical abilities is viewed as being of high utility and, when conducted within reasonable parameters, it would usually be held to outweigh the harm or annoyance suffered by those exposed to it. It is generally stated that there are certain inconveniences which people living in populous areas must tolerate. Musical instrument practice commonly falls within this category. It was outside the Court’s province to differentiate between musical pursuits and say, for example, that a piano is a legitimate musical instrument and drums are not. Each must be equally respected and protected. 

The Court found that Tolentino’s practice of guitar and vocals did not constitute a nuisance as there was no testimony that it continued late into the night nor was there any evidence of Tolentino’s intent to have any sound enter Getty’s dwelling unit.

The elements of the tort of interference with the contract are: (1) the existence of a valid contract, (2)a defendant’s knowledge of that contract, (3) the defendant’s intentional procuring of the breach, and (4) damages. The tort of interference with a contract requires the existence of a valid contract between a plaintiff and a third party. A defendant’s actual knowledge of an existing contract is an essential element of a cause of action for tortious interference. The Court found there was no evidence that either party knew of the existence of any valid contract between the other party and a third party. Therefore, no interference with the contract was proven.

The elements of interference with a prospective contract or business relationship are: (1) a defendant’s knowledge of a plaintiff’s business opportunity with another party, (2) the defendant’s intentional interference with that opportunity, (3) the defendant’s use of wrongful means for the sole purpose of inflicting harm, (4) a showing that the contract or prospective business relationship would have been entered into but for the defendant’s interference, and (5) resulting damages.

A cause of action for interference with prospective contract or business relationship required proof of more culpable conduct on the part of Tolentino. Specifically, Getty was required to show that Tolentino interfered with a prospective business opportunity either through the use of wrongful means or for the sole purpose of inflicting harm on Getty. An interference-with-prospective-contract or business-relationship claim required that Tolentino had knowledge of the prospective contract or business relationship.

The Court found there was no proof that either party: (1) had knowledge of the other’s business opportunity with another party, (2) intentionally interfered with that opportunity, (3) used wrongful means for the sole purpose of inflicting harm, or (4) that the contract or prospective business relationship would have been entered into but for the other’s interference.

The parties agreed that the cooperative rules prohibit subletting. But Getty argued that renting using Airbnb was not subletting.

A sublease is a grant by a tenant with an interest in the demised premises which is less than the tenant’s own, retaining to the tenant a reversion. If a tenant retains a reversion in himself, he has made a sub-lease.

Airbnb does not own properties. It acts as an intermediary, a broker between those who want to rent out space and those who are looking for space to rent. Airbnb offers someone’s home as a place to stay. The owner lists his property for rental and a renter will enter information and pay for the use. The stay periods are usually less than one month.

Here, Getty proposed using Airbnb to broker the rental of his unit for a three to four-week period. Thereafter, Getty would have the right to resume possession. That was a proposed sublease. There was no proof of any waiver of that prohibition or any consent to any sublet. It was not permitted by the cooperative’s rules. Getty could have no reasonable expectation to lawfully profit by such a sublease and therefore had no damages.

The burden of proof rests on the party asserting the claim. That meant that Getty was required to establish, by a fair preponderance of the credible evidence, that the claim Getty made was true. Same for the Tolentinos’ case. The credible evidence meant the testimony or exhibits was worthy to be believed. A preponderance of the evidence means the greater part of such evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. It refers to the quality of the evidence, that is, its convincing quality, the weight, and the effect that it has on minds. The law requires that in order to prevail on a claim, the evidence that supports the claim must appear as more nearly representing what took place than the evidence opposed to the claim. If it does not, or if it weighs so evenly that one is unable to say that there is a preponderance on either side, then the question must be decided in favor of the other party. It is only if the evidence favoring the party asserting the claim outweighs the evidence opposed to it that one can find in favor of that party. 

Each party had the burden of proof of the other’s liability and its own damages. Even in the relatively relaxed and informal atmosphere of a small or commercial claims action, each party had the burden of establishing its case by a preponderance of the evidence. And each party had the burden of proving the extent of their damages and the court cannot guess as to the extent of damages. Although the amount of such damages need not be proven to exactitude, they must be demonstrated with sufficient certainty, and cannot be speculative. Here, the Court found that neither party sustained their burden with respect to damages.

In providing the parties with substantial justice according to the rules and principles of substantive law, and under a fair interpretation of the evidence, with the Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses, the Court found that neither party had proven their claim or their damages.