Expert Witness Testimony: Shepard Ellenberg & Penquin Tenants Corp

Whose "side" are we on?
Our client, Shepard Ellenberg, controlled a downstairs restaurant space in a residential co-op. The co-op board put in place a rule barring music in the space. Ellenberg commenced an arbitration proceeding to invalidate the unreasonable rules, in order to prevent the restaurant space from becoming worthless.

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The co-op board hired Robert A. Hansen Associates, who said that any music that was audible to the customers would create a noise violation in the apartments above, even if the ceiling was dropped down a foot to 6'-4". Acoustilog represented Mr. Ellenberg, and set up a music demonstration at the restaurant. We showed that with a few reasonable measures, high-quality background music could be played without breaking the law, and no dropped ceiling would be necessary.

The arbitrator's decision, excerpted below, agreed with our position and saved our client's profitable business.

Excerpt from the co-op's rules, that were invalidated by the arbitrator's decision:

No Music or Entertainment. There will be no music, exhibitions, comedy performances, lectures, dances, meetings, entertainment or any activity whatsoever other than the cooking and serving of meals, and serving of alcoholic beverages ancillary thereto, to a white tablecloth clientele. There will be no transmission of recorded or amplified sound, nor will any sound recording or amplification equipment be utilized in or about the Restaurant Premises.

Arbitrator's Decision

American Arbitration Association
Case No. 13 183 01519 04
In the matter of the Arbitration between
Shepard Ellenberg
Penquin Tenants Corporation


At all times during dining, Tenant shall be permitted to play recorded “background” music in the Restaurant Premises.

Nothing set forth herein shall be construed to limit the Tenant’s right to play music as set forth herein, or to us the Restaurant Premises on a non-regular basis for special events, private parties, weddings, exhibitions, lectures, meetings or other similar activities, so long as such activities comply with all applicable governmental laws, rules and regulations including, but not limited to, New York City noise codes…

[Acoustilog’s recommendations were written into the arbitrator’s decsision:]

Such [monitoring] equipment shall include a locked and tamper-proof multi-band limiter calibrated to ensure compliance with subsection (a) and (b) above.

…the installation of a “distributed sound system” using small speakers strategically located around the Restaurant Premises on the walls at least one foot from the ceilings to ensure that the sound will be in compliance with all laws governing noise.

Tenant shall, at its own cost and expense, design and install a sound resistant ceiling designed by the Audio Expert, which does not decrease the height from that which now exists.