The opinion of the court was delivered by: Catterson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 2, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom, J.P. David B. Saxe James M. Catterson Karla Moskowitz Sallie Manzanet-Daniels, JJ.
Defendants 261 West LLC, Evan A. Haymes, Matthew Bronfman and Edward Curty appeal from orders of the Supreme Court, New York County (Paul G. Feinman, J.), entered June 15, 2010, which, to the extent appealed from as limited by the briefs, denied defendant 261 West's motion for summary judgment dismissing the fraud and misrepresentation, trespass and nuisance claims as against it and the individual defendants' motion for summary judgment dismissing the fraud and misrepresentation, trespass, nuisance and breach of fiduciary duty claims as against them and the claim for injunctive relief as against Haymes.
This action for, inter alia, trespass and nuisance arises out of alleged emanations of noise and glycol, a liquid antifreeze, from a cooling tower located on the roof of a condominium on West 28th Street in Manhattan. This causes us once again to reiterate the elements of those common law claims. The plaintiffs purchased a penthouse unit in the condominium on November 15, 2006 from defendant, 261 West LLC, the sponsor of Onyx Chelsea Condominium, pursuant to a purchase agreement and offering plan. The defendants Bronfman and Haymes are members of 261 West LLC, and, along with defendant Curty, also members of the board of managers of the Onyx Chelsea Condominium.
Among other provisions, the offering plan set forth the rights and obligations of the sponsor, 261 West. The plan stated that the sponsor "will correct, repair, or replace any and all defects relating to construction of the [b]uilding, [c]ommon [e]lements or the [r]esidential [u]nits," and that "[n]othing contained in this section will be construed so as to render sponsor liable for money damages (whether based on negligence, breach of contract, breach of warranty, or otherwise)."
The following facts are established in the record: On January 24, 2005, Cerami and Associates (hereinafter referred to as "Cerami"), an acoustical engineering firm, prepared a report for the management company containing recommendations for the building. The report expressed concern that sound transmission from the cooling tower on the rooftop to the penthouse windows would not meet building code requirements. Cerami noted that although there were no specific code requirements for the terrace, a level of 65 dBA would interfere with conversation.*fn1 Based on the manufacturer's data, Cerami estimated that the noise level on the terrace would be 70 dBA and recommended installing the "manufacturer's intake package" in order to reduce the noise. In a November 10, 2006 follow-up report, Cerami noted that 261 West did not install the recommended noise reduction package and reiterated the necessity of the package to meet the building code requirements.
It is undisputed that the offering plan did not depict the cooling tower in architectural renderings nor the penthouse floor plan. However, the plaintiffs testified at deposition that they visited the unit a number of times prior to closing, and plaintiff Harris testified that she saw the tower during a pre-closing inspection. The plaintiffs purchased the penthouse unit and commenced occupancy in December 2007.
Beginning on March 13, 2008, the plaintiffs e-mailed a series of complaints to the managing agent about the noise emanating from the cooling tower. On June 23, 2008, the plaintiffs' counsel sent a letter to Haymes, then president of the condominium board, advising him of the plaintiffs' noise complaints, and demanding immediate correction of the problem. Counsel sent another letter to Haymes on July 3, 2008, reiterating the complaints and alleging noise levels of 85 dBA.
On or around July 31, 2008, the plaintiffs filed a complaint with the New York Attorney General's Office, alleging, inter alia, "unacceptable decibel levels," which was forwarded to counsel for 261 West. On December 8, 2008, Cerami sent a letter to the New York Attorney General's Office stating that its test of the cooling tower area revealed no noise violations. In an affidavit, the plaintiffs' licensed engineer stated ...