The Real Deal New York

Sue thy neighbor

Quality-of-life complaints soar — and so does litigation
By Peter Kiefer | April 01, 2012 07:00AM

How long should New Yorkers be forced to suffer a particularly loud (or uniquely odorous) neighbor?

For co-op and condo dwellers, the answer increasingly seems to be “not very long.” Over the past several years, attorneys and building managers say they’ve seen a noticeable uptick in the number of disputes between neighbors in New York City buildings, especially when it comes to noise and smell. As a result, condo and co-op boards are turning to attorneys with greater frequency, leading to higher legal fees and spikes in maintenance and common charges.

Aaron Shmulewitz, an attorney at Manhattan law firm Belkin Burden Wenig & Goldman, said the number of neighbor-versus-neighbor, quality-of-life complaints he’s dealing with at co-ops and condos has doubled over the past several years.

There are a number of reasons why these spats are now popping up more frequently, experts said. For one, many owners have seen the value of their homes decline over the past few years, and disagreements with neighbors can feel like pouring salt in the wound. Other factors include shoddy boom-time construction and a landmark 2006 court case, Poyck v. Bryant.

“The economy has clearly affected the number of complaints being made, and the venom with which those claims are pursued,” said Jeff Reich, a real estate attorney at Wolf Haldenstein Adler Freeman & Herz.

Noise-busters

Many New Yorkers tend to live cheek-by-jowl in apartment buildings, so disagreements with neighbors are nothing new. But these days, such complaints are much more likely to end up in court, attorneys said, and co-op and condo boards are more likely to get involved in resident disputes.

“We are brought in much sooner,” said Shmulewitz. “The sides are retreating to their corners much more firmly than they used to.”

One such disagreement is currently playing out at 260 Park Avenue South in Gramercy, a prewar condo where units sell for several millions of dollars. In February, the condo board there sued a resident over his cigarette-smoking habit.

Ditto at 200 Chambers Street, where a couple is suing their neighbor for $25,000 (plus fees and damages), alleging that smoke enters their apartment. The case is ongoing.

Another increasingly common source of litigation is noise.

“I have been handling many more noise disputes over the last year or two,” said Steven Sladkus, also of Wolf Haldenstein.

In July, for example, residents of the co-op at 61 West 62nd Street scored a victory when the Appellate Division of the New York State Supreme Court issued a decision stating that the co-op is entitled to a preliminary injunction limiting the amount of noise a rooftop bar at the neighboring Empire Hotel can make.

And in September, a judge ruled that claims against Madonna and the co-op board at Harperley Hall on Central Park West (where the Material Girl lived before purchasing an Upper East Side townhouse) could proceed to trial. One of the singer’s neighbors, Karen George, alleged that the blaring music from Madonna’s workout routines caused the walls and floors of her apartment to shake.

Experts point to a number of reasons for the increase in disputes. The first is financial; people who purchased or refinanced at the peak of the market are sitting on assets that are not worth what they originally paid, Shmulewitz noted. That, combined with layoffs or financial pressures, sometimes causes frustration to spill over into neighborly disputes.

Some credence to that argument can be found in the city’s 311 data: Both noise and odor complaints peaked in 2009, at the height of the economic downturn in Manhattan, according to data from the New York City Department of Information Technology and Telecommunications. In 2009, some 251,000 311 calls were complaints about noise, compared to 203,000 in 2011. Some 7,971 311 calls in 2009 involved odor, compared to 6,420 last year.

Attorneys said the uptick in complaints in 2009 may be one reason for increased litigation today; disputes that started out as simple complaints have since snowballed into lawsuits.

Another factor is shoddy or rushed work by developers during the real estate boom, leading to ill-conceived floor plans and units that allow noise and smell to travel easily from one apartment to another.

Ron Bielinski is a principal at Manhattan-based forensic architectural and engineering firm Erwin & Bielinski, which deals with noise and odor migration. He said he has seen a steady increase in work over the last five years.

Two-thirds of the cases he works on are for newer developments, he added, and most of the time, the cause can be traced back to a construction defect.

Noise troubleshooter Alan Fierstein, founder and president of Acoustilog, said his workload has steadily increased since 2006 — the height of the building boom — when new developments were constructed quickly, often at the expense of proper structural design.

“I don’t know if people are getting more sensitive,” Fierstein said. “But they have more things to complain about.”

Warranty of habitability

Of course, Fierstein said, another reason he’s getting more work is an “increased awareness that acoustic consultants even exist.”

In recent years, building boards and residents both seem increasingly concerned about quality-of-life disputes. One reason for that, attorneys said, is a landmark 2006 court ruling in the case of Poyck v. Bryant.

Stanley and Michelle Bryant were renters in a condo at 22 West 15th Street who moved out of the building after second-hand smoke seeped into their apartment. The Bryants said the smoke was a health hazard for Michelle, who was recovering from cancer surgery and allergic to the smoke. The owner of the condo they’d been renting, Peter Poyck, sued them for back rent. But a judge ultimately sided with the Bryants, ruling that the second-hand smoke violated the “warranty of habitability,” which says building residents cannot be subjected to conditions that harm life, health or safety.

The precedent established in that case now extends to co-op and condo boards as well as rental buildings, attorneys said. Afraid of being sued, boards turn to lawyers — and smell and noise consultants — faster than in the past.

“Everyone is afraid of liability and they are acting more prophylactically,” Shmulewitz said.

Beyond the intangibles of tension between neighbors, disputes can also result in higher maintenance and common charges.

Sound testing, for example, usually costs between $5,000 and $10,000; an expense usually shouldered by the co-op or condo board, according to Wolf Haldenstein’s Sladkus. If a case goes to litigation, legal fees typically start at around $50,000 and can easily run into the six figures. Buildings often budget around $10,000 to $20,000 per year for legal fees, he said, and if those fees suddenly jump to $100,000, the money usually comes from residents’ pocketbooks, in the form of assessments or a hike in maintenance fees and common charges.

To make matters worse, “these cases are very time consuming” for lawyers, Sladkus said. “Not only do you have to have sound testing performed and analyzed, but you need affidavits from many of the people who are adversely affected by the noise.”

Recent signs that the economy may finally be on the mend could offer some glimmer of hope for these disputes. But, in the words of Marc Luxemburg, president of the Council of New York Cooperatives & Condominiums, they are also just part of who we are.

“People have always had situations where they can’t get along,” said Luxemburg. “This has gone on with humans since we came down from the trees.”