Lexington Ave. Apt. Owner Sues Joe & The Juice for Nuisance

Court Decides Whether Facts Justify Preliminary Injunction

Grecia Gross owns shares of stock in the building corporation appurtenant to cooperative apartment 2A and is also the lessee under a proprietary lease. The building is located on the corner of Lexington Avenue and is directly above the 4/5/6 subway line. The apartment is located directly above a ground floor commercial space leased to Joe & The Juice since February 2018. Joe & The Juice is a coffee shop/juice bar, which utilizes blenders and coffee grinders as necessary components of its business.

Since October 2018, Gross asserted that her apartment had been “plagued with excessive, disruptive noise from” Joe & The Juice consisting of “incredibly loud bass music, excessive banging, and extremely loud whining machine noises … nearly every single morning” from approximately 7:00 a.m. until after 9:00 p.m.  Gross alleged the noise prevented her from being able to sleep or rest, make telephone calls, and caused her headaches, undue stress and anxiety. Gross sought to address the issue by speaking with the store’s employees, requesting remedial efforts by the board of the corporation, and hiring an acoustical consulting service company, Acoustilog Inc.  to perform sound testing and acoustical recordings from April 1, 2022 through April 11, 2022.

The sound test findings, submitted by affidavit of Alan Fierstein, Acoustilog’s president, confirmed that the excessive noise Gross alleged hearing came from the store below and was “likely caused by a lack of sufficient soundproofing in the [b]uilding’s commercial space”. It additionally found that the noise was sporadic and unpredictable which can cause a “startle effect” that is more than just a matter of annoyance. Since the Acoustilog report came out, Joe & The Juice claimed it had taken measures to reduce the noise coming from its store. Nevertheless, the noise continued to emanate from Joe & The Juice and Acoustilog outlined a series of additional steps that should be considered by the store to ensure the issue was resolved.

Gross argued that all of the elements for a preliminary injunction were met: (1) she had demonstrated a likelihood of success on the merits for all three causes of action (nuisance, breach of contract, and breach of the warranty of habitability); (2) she will suffer irreparable harm if the preliminary injunction was not granted; and (3) the balance of equities tipped in her favor. Joe & The Juice argued that Gross did not have standing to demand the relief sought because there was no private right to adjudicate Noise Code violations and she could not demonstrate the necessary elements for the issuance of a preliminary injunction.

A preliminary injunction would only be issued if Gross demonstrated, with convincing evidentiary support, a likelihood of success on the merits, irreparable injury absent granting of a preliminary injunction and that a balancing of equities favored his position.

To establish a likelihood of success on the merits, a prima facie showing of a reasonable probability of success is sufficient; actual proof of the movant’s’ claims should be left to a full hearing on the merits. A likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is not conclusive. And an issue of fact is not in itself grounds for denial of the motion.

To prevail on her nuisance claim, Gross had to prove that Joe & The Juice was substantially and unreasonably interfering with the use and enjoyment of her home. Noise of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities is a nuisance, even though it is caused by conducting a trade or business in a city. Gross demonstrated that the noise emanating from Joe & The Juice was unreasonably loud and substantially interfered with her use and enjoyment of her apartment. The affidavits submitted by Gross and her son detailed years-long disturbances of loud music, banging, and mechanical noises that had harmed her life in a variety of essential ways (i.e., sleep issues, stress and anxiety and social interruptions). Additionally, the two reports submitted by Acoustilog demonstrated that Joe & The Juice was violating New York City’s Noise Code.

Fierstein stated that [t]he recording picked up hundreds of banging and machine sounds, as well as other incidents of disturbing noise over the course of the 10 days … [T]hese banging and machine sounds are caused by employees and machinery (such as coffee grinders, blenders, and smoothie machines) in the [s]tore. Not only does the character of the sounds clearly show that the noise disturbance came from the first floor, but as further confirmation, the accelerometer data from the vibration on the


partment’s floor clearly correlates with the bangs and machine noise

And elaborated that [t]he impulsive sounds and the continuous machine sounds are easy to distinguish from traffic and miscellaneous sounds, both visually and aurally. These noises are substantially louder than the background level, or `ambient,’ which is shown just before and after the noisy events. The impulsive sounds are typically at least 16-17 dBA … higher than the background level, `or ambient, which is shown just before and after the noisy events, while the continuous machine sounds are at least 12-13 decibels higher than ambient noise

The findings of 16-17 dBA impulsive sounds violated Noise Code 24-218 [b] [3] because they were greater than the 15-dBA increase threshold for impulsive noise and the continuous machine sounds were recorded at as high as 24 dB above the ambient level at various frequencies, which violated Noise Code 24-218[b][2], since it was greater than the 10-decibel increase threshold for daytime noise.  Noise issues persisted when Fierstein conducted additional acoustic tests on August 30, 2022.

The assertion by Joe & The Juice that the relief sought by Gross was inappropriate because there was no private right to enforce the Nuisance Code was unavailing– because Gross was only seeking to use the Nuisance Code violations to support her common law nuisance claim. Joe & The Juice also argued that there were multiple issues of fact regarding the Acoustilog report such as the methodology being skewed and the findings being out of date. But the reporting occurred twice, with the first report taking place over a period of ten days and the second occurring as recently as August 2022. Additionally, the affidavit of Gross’s expert that established the noise complained of was significantly above the legal limit under the Noise Code was unrebutted by competent proof.

Gross demonstrated a likelihood of success on the merits of her nuisance claim.

An irreparable injury for purposes of granting a preliminary injunction is an injury for which money damages are insufficient. Gross’s affidavit detailed the harm the noise had caused her. The noise prevented Gross from being able to sleep or rest, or to make or stay on telephone calls, and caused her headaches, undue stress and anxiety. In short, it made it almost impossible for Gross to live in her home.

Gross has established irreparable harm for which money damages were insufficient if the preliminary injunction was not granted.

Courts must weigh the irreparable harm that would be suffered by the movant in the absence of an injunction against the burden or harm to the opposing party through the imposition of an injunction. Here, Joe &The Juice’s burden– of stopping or lowering the store’s music, instructing employees not to bang equipment or slam doors, and finding some temporary sound-proofing solutions until a more long-term solution could be agreed upon– did not outweigh the harm caused to Gross by the continued disturbances to her quality of life at home.

Additionally, Joe & The Juice could not claim prejudice or inequity from being required to comply with contractual or statutory obligations.

Here, Gross was not asking for Joe & The Juice to completely stop operating its business, she was only asking for the store to take additional measures to lower or eliminate the noise disturbances. None of Fierstein’s remedial suggestions included closing shop. Therefore, the third element was satisfied.

Gross’s motion for a preliminary injunction enjoining and restraining Joe & The Juice from creating or allowing noise from the store into her apartment in excess of what was allowed under the New York City Noise Code was granted.

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