Court sides with neighbors in Empire Hotel noise complaint ruckus

But both sides say they may be nearing resolution
By Candace Taylor | July 11, 2011 05:33PM

The Empire Hotel has suffered another setback in its long battle with neighbors over noise emanating from its popular rooftop bar. But both sides in the dispute say the case may be nearing an amicable resolution.

The Appellate Division of the New York State Supreme Court last week issued a decision stating that nearby co-op 61 West 62nd Street is still entitled to a preliminary injunction limiting the amount of noise the bar can make.

Residents of the co-op, overlooking the 12-story hotel at 44 West 63rd Street at Broadway, in 2009 filed a lawsuit alleging that the bar was playing music at “extremely loud levels,” sometimes until 3 a.m., thus “tormenting” residents of nearby apartments, according to the complaint. The residents requested that bar patrons no longer be allowed to use the outdoor areas of the bar, Empire Hotel Rooftop Bar and Lounge, which is operated by Jeffrey Chodorow’s China Grill Management.

The Supreme Court initially denied the request, but the co-op board appealed. The appellate court then ruled in 2010 in favor of a preliminary injunction, stating that the noise from the bar was interfering with residents’ right to enjoy their apartments.

Then it was the bar’s turn to appeal, but the appellate court again sided with the neighbors.

“Now the appellate division has said twice that we’re entitled to injunction,” said Steven Sladkus, an attorney at Wolf Haldenstein Adler Freeman & Herz who is representing 61 West 62nd Street.

The preliminary injunction would prevent the bar from playing music in the outdoor areas of the roof after 10 p.m. However, Sladkus said the parties have agreed to not yet activate the injunction while they negotiate to settle the case, which is ongoing and will now return to the lower court.

But after several long years of litigation and legal fees, both sides said they are now getting close to settling the case outside of court.

“There have been successful and harmonious settlement talks,” said Bruce Bronster of Windels Marx Lane & Mittendorf, who is representing the bar’s management. “We’re looking forward to an impending consensual resolution.”

Moreover, he said, in the past few years the bar has “bent over backwards” to avoid disturbing the neighbors.

“This is two years later and circumstances have dramatically changed,” Bronster said. For example, the bar has taken “remediation steps to minimize the noise,” he said.

Sladkus said his client, too, is hoping for amicable settlement. He said he is asking the bar to take steps to further sound-proof the space and deploy a retractable roof at a certain time each night.

“If you can work out a reasonably happy medium to co-exist, that’s the best alternative,” Sladkus said.

An obstacle, however, is the hotel — which uses a portion of the rooftop for its own events, such as a Maroon 5 concert last July. Sladkus said his clients want to make sure that the hotel, too, agrees to any terms the bar and co-op negotiate.

However, “the hotel has resisted and pretty much said, ‘we’re not agreeing to anything,’” Sladkus said. “So we may have to take a very hard-line approach with the hotel.”

The Chetrit Group in 2004 acquired the Empire Hotel, upgraded it, and reopened it in 2007.

“The lawsuit does not claim that there is noise coming from any space used by the hotel,” said Menachem Kastner, an attorney at Cozen O’Connor who is representing the hotel. He added that the lawsuit is “between the co-op and the tenant, not the co-op and the hotel owner.”

Last month, firefighters responded to an early-morning 911 call about overcrowding at the bar, and reportedly ordered about 120 people off the roof.