Judge Will Decide 9th Note’s Fate

A New Haven Superior Court judge will call the tune on whether or not the 9th Note will remain in Ninth Square.

The 56 Orange St. jazz and burlesque club and its owner, Chris O’Dowd, have had a cloud hanging over their head since first being served with eviction papers in November. When the marshal might come and padlock the 9th Note, which has been open for about a year, is anybody’s guess. But O’Dowd is hoping it won’t come to that.

He has hired attorney Kevin Casini, who has filed a request with the court for a temporary injunction to hold off the eviction in order to give O’Dowd some time to make amends with his landlord, Ninth Square Project LTD Partnership.

In a response filed with the court, the landlord responded that the live jazz music emanating from his supper club disturbs neighbors who live above the club and violate his lease. The landlord also said O’Dowd has failed to pay his rent in a timely manner and has bounced checks. (Read more about that here.)

O’Dowd has disputed both allegations, pointing out that though an anonymous complainant has called the police numerous times to report noise, he has never been cited for violating the city’s noise ordinance. He also has had the New Haven Department of Public Health out to test the club’s noise levels, and they found that he was within the city’s regulations for noise. (Read more about that here.)

In an effort to appease the anonymous complainant and avoid eviction, O’Dowd has brought in a sound engineer and undergone a ​“reconfiguration of the live acts and restaurant; sound insulation on any piping that may carry sound towards adjacent units, and a request that any and all acts or performers limit their volume when performing,” according to his attorney’s filing. He said he took these steps as part of settlement negotiations he attempted before hiring an attorney.

As far as rent is concerned, his attorney said O’Dowd is prepared to make good if the landlords would accept the money. O’Dowd swore in an affidavit in support of the request for a temporary injunction that he paid his overdue November rent, but the payment was returned to him. He said he paid his rent in December on time, and it also was returned to him. O’Dowd stated in the affidavit that he was told that the January rent also would be returned. Casini said O’Dowd has all of the rent payments in escrow with his accountant and he can pay all rents owed and due.

Too Little, Too Late?

In a strongly worded objection to the application for temporary injunction, the landlord argued that O’Dowd is offering is too little, too late.

Attorney David Pite wrote in his objection that O’Dowd was ​“not to have live music performances … nor allow or cause loud or disturbing music and activities to emanate from its premises and disturb, annoy or disrupt its neighbors, many of whom are residential tenants of the Plaintiff.”

He referenced parts of O’Dowd’s lease that read in part: “(g) The leased premises use is a full service restaurant.

“Section 3.1 of the lease regarding rules and regulations of permitted use which reads in part: 5. Tenant will not cause or permit the playing of any live music, loudspeakers, phonographs, public address systems or similar audio devices in any manner so as to be audible outside of the lease premises, including the apartments overhead.

“Section 3.7 Tenant’s operation: (f)Music: Tenant shall not use or permit to be used any loudspeaker, phonograph or other sound system or advertising device which may be heard outside the Premises, including specifically, but without limitation, in the residential units surrounding the Building. Any form of amplified music or dancing is strictly prohibited.”

Casini interpreted that language to mean that live music is permitted as long as it is not a nuisance. If the injunction is allowed, a judge could further decide whether O’Dowd is in fact creating a nuisance and is violating his lease.

Pite wrote that O’Dowd was well aware, both in writing and orally, that he was engaging in ​“constant violations” of his lease, and not just in November. Pite wrote that O’Dowd has been in violation the whole year 9th Note has been operating at 56 Orange St., ​“but simply ignored same and persisted in its lease violations and operating its business as it saw fit without any regard for its lease obligations or neighboring tenants.”

As for O’Dowd’s assertion about rent, and that it is currently being held in escrow, Pite declared it ​“such a blatant and outrageous untruthful statement that plaintiff has no idea how to even respond.”

Pite said in the objection that O’Dowd has not only paid his rent in an untimely fashion, he also has ​“bounced numerous checks,” which resulted in the landlord requiring him to pay by certified funds. He further faulted O’Dowd for failing to respond to a mid-January notice to appear in court, for not attempting to appeal the eviction, and trying only in recent weeks to mitigate the sound emanating from the club. He also zinged O’Dowd for talking to the press before hiring an attorney and answering a summons to court to respond to the eviction.

Even if O’Dowd could remedy the sound issues, Pite wrote, that efforts ​“wouldn’t cure the lease violations as it continues to book live acts (as it also acknowledges in its application) and allow loud noise and music to emanate from its premise.”

Given how long the alleged lease violations have been going on, and the time that the eviction process has been in the hands of the court, Pite wrote that O’Dowd has had sufficient time to remedy the situation, and the court should let him know that his time is up.

“There is no solution that does not involve the Plaintiff and the Court allowing the Defendant to continue to violate its lease to the extreme detriment of the Plaintiff, its other tenants and its adverse economic interest.”

Casini said now it’s up to the judge.“The judge can issue an order causing any number of things to happen,” Casini said. ​“What we hope happens is an order is issued that pauses the eviction long enough to have a hearing on the merits: namely, whether Chris is actually in violation of his lease.”