First Ave. Owners, Inc. v Valentina Enters., LLC

[*1] First Ave. Owners, Inc. v Valentina Enters., LLC 2009 NY Slip Op 52194(U) [25 Misc 3d 1219(A)] Decided on October 14, 2009 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2009
Supreme Court, New York County

First Avenue Owners, Inc., Plaintiff,

against

Valentina Enterprises, LLC and J.A.V. Food Corp., Defendants.



115812/05

Eileen Bransten, J.

In this action for violation of an easement and sound emission limits, plaintiff First Avenue Owners, Inc. (the "Co-op"), moves, pursuant to CPLR 3212, for summary judgment on the first, second, and third causes of action in the complaint and, pursuant to CPLR 3211 (a) (1) and (7), for an order dismissing the counterclaim of defendants Valentina Enterprises, LLC ("Valentina") and J.A.V. Food Corp. ("J.A.V".) (collectively, defendants). Defendants cross-move, pursuant to CPLR 3211 (a) (7), to dismiss plaintiff's complaint.

BACKGROUND

The Co-op owns a 20-story residential building, located at 333 East 79th Street, New York, New York (the "Residential Building"). Valentina owns a five-story commercial building, located at 1513 First Avenue, New York, New York (the "Commercial Building"), where J.A.V. operates a grocery store and food bar. The Commercial Building is located directly to the south of, and shares a party wall with, the Residential Building. All of the Residential Building's south-facing windows overlook the roof of the Commercial Building.In 1961, the Co-op's predecessor was granted a permanent easement (the "Easement") of unrestricted light, air, and view above the Commercial Building (11/17/08 Degenshein Aff., exhibit F, § 2). The Easement, among other things, specified the exact location and volume of an air conditioning tower that may be installed on the roof of the Commercial Building.

In 2003, Valentina bought the Commercial Building. A title policy issued to Valentina in 2003 identified the Easement as an exception to title and coverage (id., exhibit G, schedule B, ¶ 5).

In 2005, defendants installed a new cooling tower (the "Cooling Tower") on the roof of the Commercial Building. The Co-op alleges that the Cooling Tower's location, height, and volume violate the terms of the Easement. The Cooling Tower allegedly obstructs the views of the Residential Building's tenants who live on the sixth and seventh floors and whose windows face south (Yeh Aff., ¶ 4; Pinto Aff., ¶¶ 2-4). The Cooling Tower also allegedly generates noise at levels [*2]that exceed the limits set by the New York City Administrative Code and also generates bursts of hot air and fumes (Complaint, ¶ 14; Yeh Aff., ¶¶ 5-6; Pinto Aff., ¶¶ 4-6). Defendants allegedly refused to relocate or replace the Cooling Tower.

In its complaint (the "Complaint"), the Co-op asserts three causes of action: (1) for violation of the terms of the Easement, seeking "a permanent injunction preventing Defendant from operating the Cooling Tower and an Order compelling Defendant(s) to remove" it (Complaint, ¶ 18), (2) for a declaratory judgment, pursuant to CPLR 3001, that defendants are in violation of the noise limit provisions of the Administrative Code, seeking a permanent injunction preventing defendants from operating the Cooling Tower, and (3) for private and public nuisance, based on excessive noise generated by the Cooling Tower, seeking a permanent injunction preventing defendants from operating it.

In their answer, defendants asserted a counterclaim, alleging that the Co-op's action is frivolous. Defendants seek costs, disbursements, and legal fees (Answer, ¶¶ 7-9).

The Co-op moves for summary judgment and for an order dismissing defendants' counterclaim. Defendants cross-move to dismiss the Complaint.

ANALYSIS

The Co-op's Motion for Summary Judgment

To obtain summary judgment, a movant must tender evidentiary proof that would establish the movant's cause of action or defense sufficiently to warrant judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[T]o defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact" (id., quoting CPLR 3212 [b] [internal quotation marks omitted]).

The Co-op seeks a permanent injunction preventing defendants from operating the Cooling Tower on the grounds that it violates provisions of the Easement and noise limits of the Administrative Code, as well as constitutes a private and public nuisance. The Co-op also seeks an order compelling defendants to remove the Cooling Tower on the ground that it violates the Easement.

In order to obtain a permanent injunction, a plaintiff must show (1) the violation of a right that is presently occurring or imminent (see e.g. People v Canal Bd., 55 NY 390, 394-395 [1874]), (2) that the plaintiff has no adequate remedy at law (see e.g Kane v Walsh, 295 NY 198, 205-206 [1946]), (3) that serious and irreparable injury will result if the injunction is not granted (see e.g. Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]), and (4) that the equities are balanced in the plaintiff's favor (id.).

Easement

"A negative easement ... is a right in the owner of the dominant estate to restrict the owner of the servient estate in the exercise of the latter's general and natural rights of property" (Rahabi v Morrison, 81 AD2d 434, 440 [2d Dept 1981]). "Where an obstruction to the enjoyment of the easement is of a permanent or continuous nature and the damages for each day's obstruction are insignificant, the remedy of successive actions at law for such damages is inadequate and an action in equity for an injunction will lie" (id. at 438).

The record on this motion reveals that the Commercial Building is subject to a negative [*3]easement, whose validity defendants do not dispute. The Easement specifically provides that its purpose is to provide the owner of the Residential Building with "unrestricted light, air, and view" over the Commercial Building (Easement, § 2). Additionally, the Easement obligates the owner of the Commercial Building

"not [to] do or suffer to be done any act or acts on [its parcel] by which the light, air or view of the windows in [the Residential Building] ... are obstructed or by which the said balconies, windows and air-conditioning louvers [of the Residential Building] may be adversely affected"

(id., § 3).

As to a cooling tower that may be installed on the roof of the Commercial Building, the Easement specifies that its location is "substantially twenty-one feet, six inches east of the westerly lot line and nineteen feet, six inches south of the northerly lot line" and that its measurements may not exceed "two hundred fifty cubic feet, exclusive of supports from the underside of said tower to the roof ... " (id., § 4 [b]).

A. Location

According to the Co-op's expert, in 2005, the Cooling Tower was located 31 feet, 4.75 inches east from the westerly lot line and 20 feet, 4.5 inches south of the northerly lot line (11/13/08 Bielinski Aff., exhibit I). In 2008, the Cooling Tower was located 31 feet, 4.5 inches east from the westerly lot line and 20 feet, 6.75 inches south of the northerly lot line (id., exhibit J). According to defendants' expert, in December 2008, the Cooling Tower was located "21 [feet] south of the common property line and 31 [feet] East of the other common property line" (01/22/09 Turner Report attached to 01/23/09 Turner Aff.). Therefore, the Cooling Tower is located approximately 31 feet east of the westerly lot line, instead of the prescribed 21 feet, six inches, and approximately 21 feet south of the northerly lot line, instead of the prescribed 19 feet, six inches (Easement, § 4 [b]). Accordingly, there is no issue of fact that the Cooling Tower's current location does not substantially comply with the terms of the Easement.

B. Measurement

According to the Co-op's expert, in June 2005, the Cooling Tower measured 257.5 cubic feet, and in November 2008, it measured 354.4 cubic feet (11/13/08 Bielinski Aff., exhibit I, ¶ b [3]; exhibit J, ¶ b [3]). The second measurement significantly exceeds the prescribed 250 cubic feet (Easement, § 4 [b]).

According to the defendants' expert, in December 2008, the Cooling Tower measured 344.7 cubic feet (01/22/09 Turner Report attached to 01/23/09 Turner Aff.). Defendants' expert, however, argues that the Cooling Tower's removable baffle, which is "for the comfort of the neighboring building," measures 137.88 cubic feet (id.). According to him, "the basic unit," without the removable baffle, is approximately 250 cubic feet (id.). Therefore, defendants argue that the Cooling Tower substantially complies with the restrictions imposed by the Easement. However, the Easement expressly provides that its measurements exclude only the supports underneath it (Easement, § 4 [b]; see Matter of Lawrence v 5 Harrison Assoc., 295 AD2d 131, 132 [1st Dept 2002] [where the language of an easement is not ambiguous, it alone is sufficient to determine the intent of the parties to the grant]). As a rule of contract construction, since the Easement excludes only the supports from the calculation of a cooling tower's total measurement, all of its other parts [*4]are included (see e.g. 1009 Second Ave. Assoc. v New York City Off-Track Betting Corp., 248 AD2d 106, 108 [1st Dept 1998]). Therefore, the removable baffle, even if its purpose is to reduce noise, must be included in the calculation of the Cooling Tower's volume, which, accordingly, substantially exceeds the limitations imposed by the Easement.

In the Complaint, the Co-op alleged that the Cooling Tower's height also violates the terms of the Easement (Complaint, ¶ 17). The Easement provides that a cooling tower may "rise no more than ten feet above the finished roof, exclusive of piping to it" (Easement, § 4 [b]). The Co-op's expert determined that the Cooling Tower is approximately nine feet four inches "from the roof plane adjacent" (11/13/08 Bielinski Aff., exhibits I, J). Accordingly, there is no showing that the Cooling Tower violates the height limitation. However, the Co-op did demonstrate that the Cooling Tower violates the limitations on its size and location.

Noise Level

The Co-op alleges that the Cooling Tower generates noise at levels that violate the New York City Noise Control Code, codified in the Administrative Code, which provides, in relevant part, that

"[n]o person shall operate or permit to be operated a circulation device in such a manner as to create a sound level in excess of 42 dB(A) when measured inside a receiving property dwelling unit. The measurement shall be taken with the window or terrace door open at a point three feet from the open portion of the window or terrace door"

(§ 24-227 [a]).[FN1]

In September 2005, the Co-op's expert measured the sound level emitted by the Cooling Tower to be between 64.1 and 64.7 decibels (dBA) (11/13/08 Bielinski Aff., ¶ 8, exhibit K). The Co-op's expert attempted to take sound level measurements again in November 2008; however, the Cooling Tower was not then operating (id., ¶ 9). The Co-op's expert noted that, since his last visit, some noise attenuation material was added onto the Cooling Tower. However, he opined that this measure was unlikely to reduce the noise level by more than 20 dBA (id.).

Defendant's expert visited the premises in January 2009 (01/09/09 Fierstein Report attached to 01/23/09 Guarino Aff.). He states that he was unable to make sound measurements due to loud background traffic and construction noise on the corner of 79th Street and 1st Avenue (01/09/09 Fierstein Report, at 2). Although he claims that measured the sound in October 2005 as well, he does not state what his findings were at that time. He asserts that, in January 2009, the Cooling Tower was inaudible when it was turned on (id. at 3). Defendant's expert questions the Co-op expert's findings, due to allegedly high traffic noise persistent at this intersection, which, he claims, makes sound measurement impossible (id.).

Defendants also provide a memorandum by Ivan Pollak (the "Pollak Memorandum"), which was prepared in March 2005, apparently before the Cooling Tower was built (Leifer Aff., exhibit A). In it, Mr. Pollak opined that the Cooling Tower with sound attenuating materials would not violate [*5]the Administrative Code (id.). However, the Pollak Memorandum is not in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] [evidentiary proof in opposition must be in admissible form]). More significantly, it does not offer any actual measurements of sound levels emitted by the Cooling Tower, and is therefore, merely speculative.

In reply, the Co-op offers certain documents from the New York City Department of Environmental Protection ("DEP"), which reveal that, in 2006, DEP received many complaints about the noise levels generated by the Cooling Tower and, in June 2006, measured its sound level, which was 65 dBAan even higher measurement than that obtained by the Co-op's expert (see 02/12/09 Degenshein Aff., exhibit L, service No. 1364852).

Accordingly, through expert evidence, the Co-op established that the Cooling Tower generates noise at a level that exceeds the limits imposed by the Administrative Code.

Nuisance

The Co-op alleges that the fact that the Cooling Tower emits high levels of noise constitutes both a private and public nuisance (Complaint, ¶ 26).

"The elements of a private nuisance cause of action are (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act"

(JP Morgan Chase Bank v Whitmore, 41 AD3d 433, 434 [2d Dept 2007] quoting Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977] [internal quotation marks omitted]).

The record on this motion reveals that the size and location of the Cooling Tower, as well as its noise level, adversely impacts the quality of life of the residents of the Residential Building, especially those residing on the sixth floor and whose windows face south (see e.g. Pinto Aff., ¶¶ 3-7; Yeh Aff., ¶¶ 2, 4-6). Additionally, as previously discussed, the Cooling Tower's noise level exceeds the limits of the Administrative Code. This is sufficient to satisfy the elements of a private nuisance (see e.g. JP Morgan Chase Bank, 41 AD3d at 435).The Co-op also alleges that the Cooling Tower is a public nuisance. However, it appears that the Co-op does not pursue this claim. A public nuisance

"consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all ..., in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons"

(Copart Industries, Inc., 41 NY2d at 568). "[A]lthough an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance" (id.). It does not appear that the Cooling Tower is a public nuisance because there has been no showing of any interference with the public. Accordingly, this claim is dismissed.

The Co-op demonstrated that the Cooling Tower violates the terms of the Easement and it blocks light, air, and views of some of the Residential Building's residents. The Cooling Tower's sound attenuating materials and devices bring its total measurements significantly over the 250-cubic-feet limit. The Co-op also demonstrated that, without the sound attenuating materials, the Cooling Tower emits sound at levels that exceed the limits of the Administrative Code and that the [*6]materials do not bring the sound within acceptable limits. Consequently, the Cooling Tower violates the requirements of the Easement and/or the Administrative Code whether or not the removable baffle is used.

In their cross-motion, defendants argue that the Complaint fails to allege lack of adequate remedy at law and irreparable harm. However, the Co-op pleaded and demonstrated that it does not have an adequate remedy at law, and it suffers irreparable harm, as a result of the Cooling Tower's blocking light, air, and views of some of the Co-op's residents, as well as emitting excessive noise (see e.g. Rahabi, 81 AD2d at 438). Additionally, in the absence of an injunction, the Co-op could lose its rights under the Easement by virtue of defendants' adverse possession of a portion of the roof of the Commercial Building (see id.). Accordingly, the Co-op demonstrated the existence of an ongoing violation of its right, absence of adequate remedy at law, immediate and irreparable harm, and that equities tip in its favor. Therefore, a permanent injunction in the Co-op's favor is warranted.

Given that the Co-op's motion for summary judgment is granted, defendants' cross-motion to dismiss the complaint is denied. Additionally, for the same reason, the Co-op's motion to dismiss Defendants' counterclaim is granted.

Accordingly, it is

ORDERED that the motion of plaintiff First Avenue Owners, Inc., pursuant to CPLR 3212 and 3211 (a) (1) and (7), is granted to the extent of granting partial summary judgment in favor of plaintiff and against defendants Valentina Enterprises, LLC, and J.A.V. Food Corp. as follows: (1)Defendants are directed to remove, replace, or modify the existing Cooling Tower so that it complies with all of the requirements of the Easement, including its location and size. Said work to be completed absolutely no later than March 1, 2010; and it is further(2)ADJUDGED AND DECLARED that the Cooling Tower without sound attenuating materials and devices violates the noise limitations of the Administrative Code; and it is further(3)ORDERED that defendants' counterclaim is dismissed;

and it is further

ORDERED that the cross motion of defendants Valentina Enterprises, LLC, and J.A.V. Food Corp., pursuant to CPLR 3211 (a) (7), is denied.

This constitutes the Decision, Order and Judgment of the Court.

Dated: New York, New York

October ___, 2009

ENTER

Hon. Eileen Bransten Footnotes

Footnote 1: The New York City Noise Code (Local Law 113 of 2005) was revised on July 1, 2005, lowering sound limit for circulation devices from 45 dBA to 42 dBA. The prior limitation was codified in section 24-237.