802 “Can You Turn It Down?”

Your Right to Practice in Your Apartment

Volume CIV, No. 5May, 2004

Harvey S. Mars, Esq.
Local 802 Counsel
Leibowitz & Mars LLP

Recently I was requested by a union official to research the issue of whether a musician who regularly practices and rehearses in his Manhattan co-op may be evicted because he is allegedly disturbing his neighbors and creating a nuisance.

I thought the results of my research would be of interest to any musician who is compelled to practice at home in a residential building.

Based upon my research, it is clear that most courts considering this issue have found that daily practice of musical instruments is permissible despite neighbors’ complaints of noise nuisance.

One court found that an hour of drum playing daily is O.K. Douglas Elliman & Co. v. Karlsen, 59 Misc.2d 243, 298 N.Y.S.2d 594 (Civ.Ct.N.Y.Co. 1969).

Another court found that six hours of guitar playing per day is permissible. Florence Realty Corp. v. Shakespeare, N.Y.L.J., 8/12/77, p. 12.col.3 (Civ.Ct.N.Y.Co.).

In another case, the efforts of a co-op board to restrict the playing of musical instruments to one and a half hours per day per person, and prohibiting any playing after 8 p.m., was unsuccessful. The court found that such a restriction was arbitrary and unreasonable. Justice Court Mutual Housing Cooperative, Inc. v. Sandow, 50 Misc.2d 541.270 N.Y.S.2d 829 (Sup.Ct.Qns.Co. 1966).

It is clear that if a similar restriction were placed upon a professional musician in a general residential lease, it would be similarly deemed unreasonable by a court.

More recently, disturbed neighbors have attempted to prosecute noise offenders in the criminal forum, also without success.

In one case, neighbors in a residential area brought a case for criminal harassment against a defendant because of his daily drum playing. The court stated that the “development and practice of one’s musical talents is just as much a pursuit of a legitimate business or livelihood as the operation of a factory or auto repair shop which also necessarily involves the emanation of sounds or noises.” People v. Cifarelli, 115 Misc.2d 587, 588, 454 N.Y.S.2d 525 (Crim.Ct. Queens Co. 1982).

This same court held that the proof was insufficient to prove the criminal charge, and that defendant’s conduct was not a subject for criminal prosecution, citing People v. Markovitz, 102 Misc.2d 575, 423 N.Y.S.2d 996 (Crim.Ct.N.Y.Co. 1979).

The court also observed that defendant’s conduct was also insufficient to support even a claim for private nuisance since “musical instrument practice” is one of the “certain inconveniences which people living in populous areas must tolerate.”

In light of these decisions, I believe it would be difficult at best for the owner or management of a residential building to successfully evict a professional musician on the ground that his or her regular practice of a musical instrument created a “nuisance.”

However, one court decision I found held that a civil nuisance suit for money damages caused by the unfettered rehearsing of a rock band in a residential neighborhood was warranted where the decibel level of the music was well above the noise code formula established in the New York City Administrative Code, sections 24-201. The noise level caused by that rock band was consistently over 60 to 100 decibels. Siglianese v. Vallone, 637 N.Y.S.2d 284 (Civil Ct. 1995).

Therefore, my advice to musicians is if you are going to practice at home, it’s O.K. as long as you do it softly.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.