This was originally posted on the SGR Blog.
Noise over a long period of time from nearby construction certainly may be annoying and disruptive to those who work from home. But, as a recent case illustrates, that bothersome inconvenience may not rise to the level of a legally actionable nuisance.
Darien Dollinger brought a small claims proceeding for five thousand dollars ($5,000.00) alleging loss of profit based upon alleged violations of building permits and making excessive noise at a construction site located at 275 Washington Street, Mount Vernon, New York by United Engineering Service, PC. United failed to appear in the proceeding and the court held an inquest.
Dollinger lives at 10 Claremont Place in Mount Vernon, New York, and works from home. He does voice-overs in his home recording studio. Dollinger alleged that, while doing construction work at 275 Washington Street in Mount Vernon, United was making excessive noise and commencing work with drills prior to the time allowed on their building permit. Dollinger alleged that United operated a drill on weekends in violation of the permits. Dollinger stated that his complaints to the Building Department and calls to the police shut the construction down on several occasions, however, the excessive noise occurred at least six or seven times. He alleged that United created an environment where he could not enjoy the peace and quiet of his home and workplace.
Dollinger submitted several videos of the noise coming from the construction site. In the videos, he was either standing in his entry doorway or sitting in his home studio. The construction noise was heard clearly in every video. There was also a video of a police car on the scene. Dollinger stated that he complained to the Mount Vernon Building Department and Mayor’s Office on several occasions about the noise. He submitted email correspondence of his complaints with the Mayor’s Chief of Staff Darren Morton, and Planning Administrator William Long. Dollinger stated that the police arrived at the construction site on several occasions to shut down the construction because United was operating outside the scope of the permitted times and days.
To recover for loss of profits, Dollinger must demonstrate that United either breached a contract or committed a tortious act. Although the amount of such damages need not be proven to exactitude, they must be demonstrated with sufficient certainty, and cannot be speculative.
Dollinger and United did not have a contractual agreement with one another. Accordingly, in order for Dollinger to recover damages for loss of profits, Dollinger first had to establish that United committed a tortious act. Here, based on the allegations raised and documentary evidence submitted, the Court found that the evidence submitted by Dollinger failed to demonstrate that work at the construction site amounted to the commission of a tortious act, namely a private nuisance.
The New York Court of Appeals has held that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is intentional and unreasonable, negligent or reckless, or actionable under the rules governing liability for abnormally dangerous conditions or activities.
The reasonableness of conduct is measured by reference to the ordinarily reasonable person.The temporary noises and annoyances that come with construction projects in urban/developed areas, without more, will not give rise to a nuisance claim. However, a contractor with a permit to excavate or build, but who does that work or maintains it in a negligent and dangerous manner commits a nuisance. For example, property owners are guilty of private nuisance and liable for loss of income where they ignored town cease and desist orders and constructed illegal structures in violation of town building regulations.
In one case, a Manhattan rehearsal studio, where auditions and classes in the field of music were conducted, commenced an action against a construction company working on an adjacent lot. The studio alleged that dynamite explosions and vibrations coming from the site had created excessive noise and a nuisance, thereby impairing the income of the business and depriving the studio of the quiet enjoyment of the premises. The court denied the studio’s nuisance claim and held that, even though the rehearsal studio was affected by the sound and vibrations, it was in an essentially different position from hundreds of adjacent businesses, the smoothness of whose operations might also be impacted by the inconvenience. If all businesses in the area had the right to recover, the scope of liability confronting any prospective builder would be so vast as to immobilize all areas of the city into permanent rigidity.
Accordingly, some degree of noise and discomfort was inevitable in urban society, and construction and demolition will be part of the daily scene. The originator of noise cannot be held to varying standards dependent upon the identity and characteristics of his neighbor.
In another case, a film, video, and tape-recording studio in Times Square complained that the noise and vibrations from the construction of a new restaurant were substantially interfering with the recording, theater, and production activities in its studios. And that, as a result, it was suffering permanent loss of business. And complained that the noise and vibrations from the construction site exceeded acceptable levels of New York City construction laws and constituted a nuisance. The studio sought a permanent injunction to prevent construction work during their hours of operation.
In this case, the Court found that “[t]he fact that the Dollinger’s business operation, involving sound studios, is particularly sensitive to and affected by such noise and vibrations does not, without more, mean that the construction is in violation . . ..” The Court also noted that, despite complaining that the noise exceeded acceptable levels, the studio failed to submit any affidavits from sound experts or demonstrate that the construction site had been cited by the city authorities for any violation of any governmental rule or regulation relating to noise.
The Court found that Dollinger failed to establish a private nuisance claim but was mindful that the construction project had been a very annoying and tiresome ordeal for Dollinger. Though he testified that the Building Department and Police shut the site down on several occasions because of permit violations, there were no building code violations submitted supporting those claims. The video of the police car at the scene, videos of the noise heard from his residence, and emails to city officials, without more, did not give rise to a nuisance violation.
Accordingly, the Court found that Dollinger failed to establish his claim for loss of profits. The case was dismissed.