‘Can You Please Turn It Down?’

Your right to practice in your apartment

Volume CX, No. 1January, 2010

Harvey Mars, Esq.

For this month’s legal column, we’re reprinting one of Harvey Mars’s most popular columns. E-mail your experiences to

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).

There’s more to the story. At the time I wrote everything above, I had not yet acquired first-hand experience in litigating such cases. Soon after, I had the opportunity to do so. And my newly acquired experience reinforced my previous conclusions: the law possesses a soft spot for professional musicians who practice within their homes.

One specific case that I handled involved two married musicians who frequently practiced in their apartment. Another tenant in the building filed a lawsuit in New York Civil Court against these musicians. The tenant claimed that the music was damaging to her health! She said that the music resulted in a physical injury, leaving her with migraine headaches and aggravating her epilepsy.

On the other hand, the musicians asserted that they would practice for no more than an hour and a half daily and would never practice past 9:30 p.m.

The validity of the tenant’s claim was further weakened by her inability to verify her medical condition. She never produced a doctor’s note that could validate her condition. As the tenant’s argument continued to weaken, the musicians’ defense grew stronger: they were professional musicians who were simply practicing in order to maintain their livelihoods. (It also didn’t hurt that the assigned judge was an avid trumpet player!)

Additionally, the musicians’ practice sessions were brief and they occurred at reasonable hours.

Ultimately, the case was dismissed due to the tenant’s lack of support and the court’s tendency to rule in favor of the musicians in such cases.

Finally, the law’s support of musicians who practice in their homes is most convincingly displayed in an eviction proceeding that I handled before the New York City Housing Preservation and Development Agency.

This was the case of a well-known jazz saxophonist who also happened to be a habitual noise offender.

This musician had previously been involved in two prior hearings regarding noise disturbance, which resulted in the musician’s relocation within his development — which happened to be a musician-friendly apartment complex — and an agreement to keep noise to a minimum. Indeed, this musician faced minimal penalties for these two disturbances.

Now, in this third incident of noise disturbance, the saxophonist obtained yet another lenient ruling.

Despite numerous complaints from neighboring tenants, all of whom supported similar stories regarding the saxophonist’s lengthy and noisy rehearsals, the court permitted the musician to continue practicing in his apartment.

The saxophonist had blatantly violated his lease, which explicitly states that no tenant can “make or permit noises or acts that will disturb the rights or comfort of neighbors…[Nor can a tenant] give or permit the giving of vocal or instrumental instructions in the apartment at any time.”

This musician not only practiced for extensive periods of time, but also practiced with a full band and conducted music lessons in his apartment!

Yet, the court still permitted the saxophonist to continue practicing in his apartment within the confines of a lenient probation.

The court essentially reaffirmed the musician’s lease, telling him that he could no longer give music lessons and practice with a full band in his apartment.

He would, however, be permitted to practice by himself for “three hours per day, on one instrument at a time, between the hours of 10 a.m. and 5 p.m.”

Certainly, the courts have established a precedent for such cases. When faced with lawsuits regarding noise disturbance, the musicians are, for the most part, victorious. And so, the right of professional musicians to practice in their residence most often prevails.

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