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by dan rivoli

a panel of judges sided with residents of a co-op that say the empire hotel, a nightlife hotspot in the upper west side, is a noisy neighbor.

in a three-to-one decision, the co-op at 61 w. 62nd st. showed that the hotel's rooftop bar caused "unreasonable" interference with the residents' "right to use and enjoy their respective apartments," according to an aug. 24 ruling.

"the affidavits of the residents detailed the nightly assault on the quiet enjoyment of their respective apartments," judge james catterson wrote in the decision.

the co-op also hired an acoustical consultant to submit an affidavit that said music played in the bar consistently exceeded the 45-decibel legal limit.

the decision reverses the state supreme court's decision and sends the case back for a "provisional remedy" for the elimination of excessive noise.

"the rooftop bar was being operated in such a way it was causing a racket to the residents of the building," said steven sladkus, attorney for the co-op. "i'm hoping that the trial court, in light of the appellate court's decision, will do the right thing to do what it takes to curtail the nuisance as quickly as possible."

bruce bronster, an attorney representing the hotel in the case, said the noise is in keeping with regulation.

"our client has no interest in creating excessive noise in violation of the noise code," bronster said. "we only wish to get along with our neighbors. we don't believe we've ever created noise in violation of the noise code."

affidavits from jeffrey chodorow, a restaurateur and the bar's operator, said that the city never issued a noise violation to the rooftop bar. music is played only in the west terrace and enclosed central area, not on the open-air terrace on the east side of the roof, which is closest to the co-op. the east side of the roof is also where smokers congregate.

another defense was that music was not loud and residents hadn't brought complaints about noise. catterson wrote that the affidavits contained "inadmissible hearsay" and that absence of a violation from the city doesn't mean there is no nuisance.

"unfortunately," sladkus, the co-op's attorney, said, "you cannot rely on state agencies to issue violations when violations are occurring."

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