Owner Didn't Send Written Notice of Noise Violation

Facts: A resident of a mixed-use retail and condominium building complained that the employees of a restaurant that rented space on the ground floor of the building played excessively loud music. The resident sued the owner of the building for “private nuisance,” claiming that the owner was responsible for the tenant's behavior. The owner asked a New York court for a judgment in its favor without a trial.

The owner then sued the tenant for indemnification—that is, for the tenant to reimburse the owner for the tenant's share of any damages it might have to pay to the resident. And the tenant sued the owner, asserting that the owner controlled the structural elements in the space and failed to adequately soundproof the walls.

Decision: A New York court ruled in favor of the tenant and ordered a new trial regarding the nuisance claim.

Reasoning: The owner argued that there was no nuisance because to establish a nuisance claim, the alleged nuisance must be “ongoing,” and the resident couldn't demonstrate continuing violations of New York's noise code sufficient to establish that. It asserted that, because there was no nuisance, the resident's claim against it should be dismissed. But the court determined that there was an issue of fact that required a jury to decide, because there was some evidence of “substantial and unreasonable interference” with the resident's “use and enjoyment of her unit that an ordinary, reasonable person would have found annoying or the cause of discomfort.” It denied the owner's request and ordered a trial on the matter.

The court also ruled in favor of the tenant, which claimed that: (1) it wasn't responsible for the alleged nuisance because the owner had performed work in the space that damaged the structure of the premises and caused the alleged nuisance; (2) it had objected to the work at the time it was performed; and (3) the owner was responsible for installing soundproof walls. The owner denied doing the work, but it didn't show any evidence to support its claim. It did, however, rely on its lease with the tenant to prove that it was entitled to indemnification from the tenant. The lease stated that the tenant was obligated to indemnify the owner against all liabilities and expenses not covered by insurance that happened as a result of any breach by the tenant of any part of the lease.

The court noted that the indemnification provision was triggered by a breach of the lease—here, the alleged improper conduct of the tenant's employees. But the owner was required to notify the tenant of any breach, and it couldn't prove that it had sent a written notice to the tenant to tell it that it had breached the lease or that a lawsuit had been filed that would possibly require it to indemnify the owner. The court said that, because a trial was necessary to determine whether a nuisance existed, the claim was premature and a judgment in favor of the owner couldn't be made before the trial.

Additionally, the court noted that while the lease provisions were intended to help ensure that the tenant didn't allow sound to annoy residents in the building, the owner contacted the tenant only once about the noise complaints.

• Kahona Beach LLC and Bongo v. Santa Ana Restaurant Corp., 344 Bowery Retail LLC, et al., January 2012