Plaintiff, the owner of a residential cooperative apartment building, brought this private nuisance action against the owners and operators of a rooftop bar on an adjacent building alleging that defendants “play or permit to be played music at extremely loud level.” On May 26, 2009, plaintiff moved by show cause order for a preliminary injunction prohibiting the bar’s use of the open roof deck as well as the attendant excessive noise.
The trial court denied plaintiffs motion on the grounds that, inter alia, plaintiff did not demonstrate a likelihood of success on the merits because “the New York City Department of Environmental Protection [DEP], the agency responsible for enforcing the Noise Control Code, has never issued any violations to [defendants].” 404 On appeal, this Court reversed and remanded (77 AD3d 330 [2010]).
We found that “[i]t is wholly immaterial to maintaining an action for nuisance at common law whether or not DEE or indeed any municipal authority, has issued noise ordinance violations” (77 AD3d at 334). We further found that the court’s failure to enjoin defendants was an abuse of discretion. Defendants appealed, and the Court of Appeals modified (16 NY3d 822 [2011], supra).
It found that the failure of any authority to issue a violation of the New York City Noise Control Code does not preclude plaintiff from demonstrating a likelihood of success on the merits (16 NY3d at 823). The Court further found that a provisional remedy is not required as a matter of law and remitted to this Court for the exercise of its discretion (id.).
Accordingly, we now find that the facts of this case as detailed in our prior decision (77 AD3d 330 [2010], supra) indicate that a preliminary injunction should issue, and we remand to Supreme Court to fashion a provisional remedy consistent with the opinion. Concur — Catterson, Moskowitz and DeGrasse, JJ.
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