New York City has a reputation as the city that never sleeps. As a recent decision by Supreme Court, New York County Justice Joan M. Kenney in Kahona Beach LLC v. Santa Ana Restaurant Corp.1 demonstrates, balancing that 24/7 vitality against competing quality of life concerns can sometimes be problematic and require court intervention. In Kahona Beach, the limited liability company owning a condominium apartment in Manhattan, and the individual residing there, sued a restaurant/lounge located directly below the apartment, the principal of the restaurant/lounge and the restaurant/lounge’s landlord.2 The suit sought damages and permanent injunctive relief based on defendants’ allegedly having created a private nuisance by playing music too loudly.
As summarized in Justice Kenney’s decision, another Supreme Court Justice (Walter B. Tolub, J.) had initially granted plaintiffs’ request to preliminarily enjoin defendants from playing music above the sound levels described in the noise code and had directed a hearing. At the hearing, Justice Tolub instructed the defendants to propose a plan that would ensure compliance with the noise code requirements. Approximately three months later, the parties appeared before Justice Tolub concerning the preliminary injunction motion and a contempt motion made by plaintiffs. After an evidentiary hearing, Justice Tolub denied plaintiffs’ application to enjoin the restaurant/lounge from operating in the late evening and early morning hours and, “finding only a minor violation of the injunction, denied plaintiffs’ contempt motion.”
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