The following numbered papers read on this Order to Show Cause by plaintiff for an Order: (1) enjoin concerts that exceed the noise level standards in the Noise Code, including without limitation Noise Code 24-131, and Noise Code 24-244, or a sound device permit issued by the NYPD pursuant to Administrative Code 10-108 and Noise Code 24-244; (2) require defendant to continuously monitor dBA, dBC, and one-third octave band levels through an independent noise monitoring organization approved by the Court and paid for by Defendant during the Stadium sound checks, rehearsals and concerts, with readings promptly being disclosed to FHGC after each show; (3) enjoin defendant from trespassing and/or causing a trespass on FHGC private property including through the placement of barricades, security personnel operations, ticket queuing and other concert operations on FHGC’s private property (unless a license is in place); and (4) require defendant to develop a plan with NYPD to avoid dangerous pedestrian and traffic conditions that require police closures of private streets (and enjoins the creation of such conditions unless a license is in place). Papers Numbered Order to Show Cause — Affirmation — Exhibits EF 50-102 Affirmation in Opposition EF 105-191 Reply Affirmation EF 192 Plaintiff, Forest Hills Gardens Corporation (“FHGC”), is the owner of the streets, sidewalks and common areas in the location known as Forest Hills Gardens (the “Gardens”). It is a homeowner association that represents approximately 900 property owners in the Gardens, including the West Side Tennis Club (“WSTC”) and Forest Hills Stadium (“Stadium”). WSTC is a 120-year-old non-profit organization with the centerpiece of the club being the Stadium, an outdoor tennis stadium and concert venue constructed in 1923. The Stadium plays center-stage to tennis tournaments and musical events throughout the year. FHGC moves by Order to Show Cause to enjoin the “most serious impacts to the community caused by concerts held at the WSTC’s Forest Hills Stadium” pending final determination of the entire action (NYSCEF Doc. 51, P. 1). The first concert of the 2024 season is expected to begin no later than May 4, 2024. In support of the Order to Show Cause, the plaintiff submits affidavits from residents describing the disturbances they experience as well as an affidavit from an engineer. To establish a likelihood of success on the merits, the party seeking injunctive relief must demonstrate by clear and convincing evidence: (1) a probability of success on the merits; (2) danger of irreparable injury in the absence of an injunction; and (3) a balance of equities in its favors. “A likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence need not be conclusive (CPLR 6312(c) [an issue of fact "shall not in itself be grounds for denial of the motion"]). Here, plaintiff brings five claims: breach of declaration, public and private nuisance, trespass and zoning violations. This Court finds that the plaintiff met it’s burden of demonstrating by clear and convincing evidence a likelihood of success on the merits of its claims against the defendant for trespass and public/private nuisance. “A prima facie showing of reasonable probability of success is sufficient; actual proof of the plaintiffs’ claims should be left to a full hearing on the merits (Barbes Rest. Inc. v. ASRR Suzer 218, LLC, 140 Ad3d 430 [1st Dept. 2016]). In opposition to plaintiff’s requested relief, defendant argues that after six decades of hosting concerts, “ten years of active cooperation with FHGC and…seven months of litigation during which the 2023 concert season started and finished without any request for a preliminary injunctive relief from this Court, only now has FHGC concluded that the concerts’ impacts are so dire that emergency judicial intervention is necessary” (NYSCEF Doc. 191, P. 8). To that extent, the Court highlights and recognizes the increase in the number of concerts per year which has led plaintiff to bring the instant action at this time. Moreover, the Court is aware that plaintiff did not seek an injunction in the 2023 concert season rather, it took that as an opportunity to retain the assistance of Cerami & Associates, Inc., to measure noise readings to investigate the noise levels emanating from the venue. The Court finds that such tests were essential to the instant action in order to determine whether the music levels exceeded the Noise Code. The Court finds that the plaintiff is entitled to a preliminary injunction prohibiting defendants from permitting excessive noise to emanate from the Stadium. Plaintiff has demonstrated a likelihood of success on the merits and established the prospect of irreparable harm if provisional relief is withheld. The affidavit of plaintiff’s expert wherein he concluded that the noise complained of was approximately 100 times the legal limit for the residential neighborhood was unrebutted by competent proof, and the affidavits of the residents detailed the nightly assault on the quiet enjoyment of their respective homes. Finally, plaintiff established that the balance of the equities tipped decidedly in favor of plaintiff and its residents. There was no evidence of record that playing of music louder than permitted by law was a significant and necessary part of the stadium’s operation and income, nor was there evidence of record that the stadium required the use of the streets and sidewalks for concert purposes. To establish a claim of trespass, a plaintiff must show that an actor invaded the plaintiff’s interest in the exclusive possession of his or her land (Behar v. Quaker Ridge Gold Club, Inc., 118 AD3d 833 [2d Dept 2014]). Plaintiff’s affidavits submitted by residents of FHGC demonstrate that the unauthorized use of FHGC’s private streets and sidewalks for concert operations is a trespass. The concerts affect a third-party trespass in that it invites thousands of people to walk in FHGC’s private streets to the exclusion of vehicular and other traffic (NYSCEF Doc 98, P 19). Defendant incorrectly maintains that FHGC conceded the Club’s right to invite concertgoers to access the Stadium through the surrounding streets in a related action captioned, West Side Tennis Club v. Forest Hills Gardens Corp., Index No. 710294/2023 (Sup. Ct. Queens Co.). However, FHGC did not concede the Club’s alleged easement right, rather it specifically stipulated that access to the stadium would not be blocked pending the outcome of that lawsuit. Plaintiff does concede that “all members of the Gardens have a nonexclusive and reasonable right to use sidewalks for pedestrians and streets for vehicles, no member has the right to erect facilities on private streets or to close or force the closure of sidewalks and streets without a license from FHGC” (NYSCEF Doc. 51 P. 4-5). Further defendant asserts that Justice Leverett ordered that FHGC could not “block or interfere with pedestrian access” and instead must “defer to NYPD protocols and directives.” Rather, the motion for a preliminary injunction by the plaintiff in the related action was denied as moot because the defendant in the related action, FHGC, stipulated to the above. To prevail on the public nuisance claim, plaintiff must prove that it suffered an injury beyond that suffered by the community at large because of conduct or omissions which endanger or injure the property, health, safety or comfort of a considerable numbers of persons (NYSCEF Doc. 98, P. 20; citing Hoover v. Durkee, 212 AD2d 839 [3d Dept 1995]). Plaintiff succeeded in establishing public nuisance through the affidavits submitted by residents and the documented noise levels that are in excess of the City Noise Code, traffic conditions and disorderly conduct that follows the concerts. Similarly, the plaintiff establishes a private nuisance by showing that the noise conditions substantially interfere with the quiet use and enjoyment of the members of the Gardens community. More specifically, plaintiff’s engineering expert conducted a noise investigation during seven separate concerts of a period of four months. The engineer, Victor Clemente, found that the music levels from the concerts “repeatedly and consistently violated the standard for ‘commercial music’ in the New York City Noise Code” (NYSCEF Doc 64, P. 2). Mr. Clemente opined that if the concerts were to continue to operate as is, the noise levels are expected to consistently violate the NYC Noise Code. Defendant maintains that “those who ‘choose to reap the advantages of living in New York City ‘must expect the impingement of that crowded society upon their life’ because ‘some degree of noise, tension and discomfort’ are ‘inevitable’ in an ‘urban setting’” (NYSCEF Doc. 191, P. 24; citing Blair v. 305-313 E. 47th St. Assocs., 123 Misc. 2d 612, 615 (Sup. Ct. NY Cnty 1983; 75 Fairview Realty Corp. v. Cepeda, 52 Misc.3d 1206(A), *2 (NY Civ Ct 2016). These cited cases are inapposite and the Court distinguishes them. In Blair, tenants of a duplex penthouse sought to enjoin the owners of a building from erecting an elevator tower and cooling system above their building (Blair v. 305-313 E. 47th St. Assocs., 123 Misc. 2d 612). In 75 Fairview Realty Corp., the nuisance petitioner alleged arose from excessive noise emanating from respondent’s apartment. Neither case addresses the noise emanating from a concert. While it is true that “persons living in organized communities must suffer some damage, annoyance and inconvenience from each other (75 Fairview Realty Corp., 52 Misc.3d 1206(A)); the noise level emanating from a concert, the vehicle and foot traffic, loitering and foul odors, before and after concerts are not encompassed in such expectations of living in an organized civil community. Furthermore, defendant cites the Court to 61 W 62 Owners Corp v. CGM Emp LLC, noting that “noise code violations…are wholly immaterial to maintaining an action for nuisance.” However, that Court also found that “through the affidavits of the residents, the plaintiff demonstrated that the interference was substantial in that the noise greatly exceeded the maximum allowed by ordinance” (Id). With respect to the second prong of the test for a preliminary injunction, plaintiff established a danger of irreparable injury in the absence of injunctive relief. Here, plaintiff demonstrated that in the absence of a preliminary injunction, the defendant would likely continue to use the streets and sidewalks for concert operations such as queuing, barricading, VIP parking and ticket booths. In the absence of a preliminary injunction, third-party trespassers will continue to engage in disorderly conduct such as littering, public urination, tail gating and loitering. Such conduct would interfere with the residents’ use and enjoyment of their property and noise levels would continue to exceed the New York City Noise Code. Finally, plaintiff met its burden of establishing a balance of equities in its favor. The Court concludes that the irreparable injury to be sustained is more burdensome to the plaintiff than the harm caused to defendant through imposition of the injunction. Injunctive relief would provide some relief to plaintiff while simply restraining the defendant from continuing any unlawful or disruptive activities (Park S. Assoc v. Blackmer, 171 AD2d 468 [1st Dept 1991]). Plaintiff’s request for injunctive relief is granted to the following extent: Defendant is to obtain a sound device permit from the NYPD pursuant to Administrative Code 10-108 and Noise Code 24-244. The Court recognizes that the defendant has been working with City agencies and sound engineers to implement new sound mitigation measures before the 2024 concert season. It appears that by the defendant’s most recent correspondence with the DEP, sound mitigation work at the Stadium is anticipated to be in place before opening day (NYSCEF Doc. 198). Additionally, the dBA, dBC, and one-third octave band levels are to be monitored by an independent noise monitoring organization approved by the Court at the sole cost and expense of plaintiff, rather than the defendant. Readings are to be promptly disclosed to FHGC after each show. Parties are to confer and provide the Court with a list of ten monitoring organizations within ten (10) days from the date herein. Reports from such monitoring organizations must be sent to both parties. As for the matter of trespass, defendant is directed to create and implement a plan through the use of barricades that direct and further limit concertgoers’ access to most residential areas. Defendant is further directed to engage with security personnel operations to ensure that concertgoers follow the assigned route to enter and exit the Stadium vicinity. Plaintiff’s final request to require defendant to develop a plan with the NYPD to avoid dangerous pedestrian and vehicle traffic conditions is denied. This Court will not usurp the function of non-party, City of New York, and/or its participating departments/divisions/entities or advise it of its obligations to perform its duties in the instant matter. While an increased NYPD presence may be a partial solution, it would be improper for this Court to, sua sponte, Order such relief. Lastly, the Court distinguishes the instant decision from the recent Order issued by Justice Caloras in that the relief requested by the plaintiff in Concerned Citizens of Forest Hills Inc., et al, v. West Side Tennis Club, differs from that requested in the instant action. At the outset, Justice Caloras denied the motion for an injunction, in part, as necessary parties had not been joined. Such argument was not advanced in the instant matter. Furthermore, here, plaintiff is not seeking to enjoin defendant from holding concerts or largescale events in 2024 until a plan is implemented; rather it is requesting that the noise level not exceed the standard in the Noise Code and that it be monitored. Moreover, plaintiff is this action is requesting a plan to address any and all trespass. As such, the decision on the instant Order to Show Cause is made in light of the relief requested and evidence presented by the parties before this Court. The foregoing constitutes the decision and Order of this Court. Dated: April 19, 2024
