‘Can you please turn it down!’ Your right to practice in your apartment

Legal Corner

Volume 112, No. 12December, 2012

Harvey Mars, Esq.

Harvey Mars is counsel to Local 802. Legal questions from
members are welcome. E-mail them to
Harvey Mars’s previous articles in this series are archived at
(Click on "Publications & Articles" from the top menu.) Nothing
here or in previous articles should be construed as formal legal advice given in
the context of an attorney-client relationship.

Several years ago 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.

Most courts considering this issue have found that daily practice
of musical instruments is permissible despite neighbors’ complaints of noise

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.

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., were 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.

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.

The court also observed that the 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 another decision, which pre-dated the others that I had
originally reviewed, the court held that a piano student’s daily practice did
not create a nuisance. First, the student was actually a concert pianist who had
developed an international reputation. Furthermore, the residential lease
contained a provision that permitted piano playing during reasonable hours. Twin
Elm Management Corp. v. Banks, 181 Misc. 96 (Municipal Court of the City of New
York, 1943).
The plaintiff had not proven a violation of that clause.

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, it is always best to
have a provision in your residential lease permitting you to practice. With an
explicit statement in your lease permitting apartment practice, you may be able
to avoid expensive and time consuming court proceedings.

You should also be aware that 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).

Also, you should know that the same latitude that the court
accorded to professional musicians practicing within their apartments is not
given in respect to commercial uses of the premises. For example, a musician who
leased out his apartment as a recording studio was found to have violated city
zoning regulations prohibiting such activity in residential premises. The
landlord in that case was permitted to evict the tenant, even though his lease
contained a covenant that permitted the tenant to use his apartment as a
recording studio. Ansonia v. Bozza, 180 Misc. 2d 702, Supreme Court,
Appellate Term, N.Y. 1st Dept..(1999).
An almost identical decision was
issued four years later in Mason v. The Department of Buildings of the City
of New York, 307 A.D. 2d 94 (1st Dept. 2003).

Further, particular care must be exercised when entering into a
commercial lease. For example, I recently consulted with a music school that had
entered into a commercial lease that contained provisions prohibiting excessive
noise. The school primarily focused on training percussionists and not
surprisingly was determined by the New York State Supreme Court to have violated
the lease. What was particularly disconcerting was that the landlord was aware
of the use the school intended for the premises, yet did nothing to forewarn the
leasee ahead of time.

It should be noted that unlike residential leases, there is no duty for a
landlord to find a replacement tenant if the occupant is evicted. In other
words, eviction does not excuse the tenant from paying rent. Thus, before
signing a commercial lease, the lease should be thoroughly examined and reviewed
by an attorney to make sure the intended use of the premises does not violate
its terms. As an object lesson, take heed from the music school that had
consulted with me. The last time I heard from them, they were considering moving
music instruction out of the building they had leased just for that very