Besser v. Beckett

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 20, 1997, which, upon reargument, insofar as appealed from, granted defendant’s motion for a preliminary injunction prohibiting plaintiff from conducting voice lessons in his apartment only to the extent of limiting the hours and days during which plaintiff could do so to Monday through Friday from 12:00 p.m. to 5:00 p.m. and Saturday from 11:00 a.m. to 5:00 p.m., affirmed, without costs. Appeal from order, same court and Justice, entered May 6, 1997, dismissed, without costs, as superseded by the appeal from the November 20, 1997 order. The schedule fashioned by the IAS Court appropriately balances the equities while maintaining the basic status quo pending final resolution of the action. We reject defendant’s argument that the clause in plaintiffs lease limiting his use of the apartment to “living purposes only” necessarily mandates injunctive relief prohibiting any commercial use of the apartment to give voice lessons. Assuming in defendant’s favor that he can enforce this clause as a third-party beneficiary, musical instruction of not more than one pupil at a time appears to be a permitted “home occupation” under New York City Zoning Resolution § 12-10 (cf., Young v Alexander, NYLJ, Sept. 7, 1994, at 27, col 5), and issues of fact exist as to whether the noise emanating from plaintiffs apartment has been of such level as to entitle defendant to what is, in effect, nuisance abatement649 type relief (see, Stiglianese v Vallone, 174 Misc 2d 312, 315-316, citing, inter alia, Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 570), and, if so, whether forms of relief such as soundproofing or limited hours of use would be more appropriate than a blanket injunction. Nor is preliminary injunctive relief directing defendant landlord to institute eviction proceedings against plaintiff warranted, it appearing that defendant would have an adequate remedy at law against the landlord, in the form of an abatement of rent, should it be determined that there has been breach of the warranty of habitability (see, Matter of Nostrand Gardens Co-Op v Howard, 221 AD2d 637). Concur — Rosenberger, Rubin, Williams and Mazzarelli, JJ.