Nonetheless, a seminal case (Park West Management Corp. vs. Mitchell) did state that "a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition."

There is no question that noise (and its close relative, vibration) can affect the habitability of an apartment. But the courts will put you to the test of proving that health, wealth or safety is at stake, and that the co-op acted irresponsibly in responding to the problem.

The courts are not fond of subjecting co-ops to noise claims under the warranty of habitability. On the other hand, co-ops cannot expect a free pass regarding noise. An appellate court in 1995's Nostrand Gardens Co-op vs. Howard affirmed that a shareholder was entitled to a 50 percent abatement of rent because of "excessive noise emanating from an apartment that neighbored the [shareholder's] apartment through the late night and early morning hours…" The court was impressed with the shareholder's "evidence regarding the nature, scope and duration of the breach and the effectiveness [presumably, ineffectiveness] of the measures that were taken by the landlord to abate the nuisance."

In situations in which the co-op is causing the noise, the cases cut both ways. The ventilation unit must be located somewhere and possibly disturb at least some shareholders. As long as the co-op acts reasonably to reduce the impact, you would probably not have viable claims. On the other hand, noise complaints are similar to other assertions that the co-op is not properly maintaining the habitability of the building. And the installation, operations, and maintenance of the ventilation unit are within the co-op's control. Therefore, if the noise is proven excessive, you're arguably entitled to some relief. Consistent with this, courts have ruled against co-ops with regard to noise from building systems.

If the ventilation unit exceeds New York City legal standards for noise or vibration, or is otherwise demonstrably intolerable whether in terms of intensity or duration, then you could very well prevail in litigation in an amount that exceeds the withheld maintenance, and recoup your legal costs.

While the courts will give deference to a co-op's business judgment about the location, specifications and condition of the unit, that surely is no blank check, especially if less offensive alternatives are available for reasonable costs.

Robert Tierman, a longtime co-op and condo attorney, is a partner at Litwin & Tierman.

Art by Liza Donnelly

Adapted from Habitat June 2008. For the complete article and more, join our Archive >>