Co-Op Owner In 'White-Glove' NYC High-Rise Scores $120K Win In Lawsuit Alleging HOA Failed To Comply w/ Proprietary Lease By Taking No Action To Respond To Her Complaints Of 2nd-Hand Smoke Wafting Into Her Apartment

In New York City, lawyer Stuart Saft writes in Habitat Magazine:

• A recent court ruling on second-hand smoke should push boards to act.
  
  Earlier this year, state Supreme Court Judge Arthur Engoron awarded a co-op shareholder named Susan Reinhard the staggering sum of $120,000 in back maintenance, plus interest and attorney’s fees. Reinhard claimed in a lawsuit that the co-op board at Connaught Tower at 300 E. 54th Street did nothing to prevent second-hand smoke from wafting into her apartment, and thus failed to comply with the proprietary lease.(1)(2)
  
  In affirming an earlier opinion in the case delivered in 2011, Judge Engoron delivered the stinging penalty to the co-op. He stated in his opinion:
  
  “Today's decision may, at first blush, seem unduly harsh on building owners, as it imposes legal, logistical, and financial burdens on them. They must either provide smoke-free apartments...by excluding smokers from their buildings, which might decrease (or might increase) the rents they could charge; or must smoke-proof their buildings, which, judging by the testimony of defendants' expert, could be mind-bogglingly expensive; or must completely forego rent payments.”
  
  This decision did not contain much in the way of facts, which has created a great deal of additional concern. However, the fact that the board failed to take any action to address Reinhard’s complaints explains why Judge Engoron was so angry. In any event, until his decision is reversed on appeal, the law in Manhattan and the Bronx is clear: co-op boards have to make apartments smoke-free.
  
  However, the decision does not indicate how the board or management can accomplish such a herculean task in both pre-war and post-war buildings. I do not think it is possible to stop smoke from entering other apartments or the hallways, so the board needs a powerful tool to stop smokers from creating a problem that the board cannot solve. My solution is for every board to enact a resolution stating that “a resident permitting cigarette, cigar, pipe or marijuana smoke from leaving the resident’s apartment and entering a common hallway or another apartment is objectionable conduct and the board will seek to terminate the proprietary lease of any shareholder permitting such smoke from leaving their apartment.”
  
  I have found over the years that sending the predicate notice in situations where neighbors are creating nuisances or disturbing other residents is an excellent way to curtail such behavior. In most instances, the notice seems to get the message across. Enacting the resolution will not stop the smoke, but it will make the smoker reconsider where they smoke and how they can keep the smoke within their apartment.
  
  Although the decision does not apply to condominiums, I can see a judge applying the same theory,(3) so my suggestion is that condominium boards enact resolutions that provide that “a resident permitting cigarette, cigar, pipe or marijuana smoke from leaving a unit and entering a common element or another unit is a nuisance and the board will seek a court order, at the smoker’s expense, to enjoin the unit owner from permitting such smoke from leaving their unit.”

Source: Attorney Tip: Stop the Spread of Smoke Now.

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(1) "Reinhard claims that after she purchased her apartment and performed renovations in her apartment, she detected a strong smell of cigarette smoke that was entering into her apartment from other areas of the building. According to Reinhard, the cigarette smoke has caused her to suffer from tightness in her chest, coughing, headaches, and watering eyes." Reinhard v. Connaught Tower Corp., 2011 NY Slip Op 33101 (N.Y. Sup. Ct. New York County, 2011).

(2) See Reinhard v. Connaught Tower Corp., 2011 NY Slip Op 33101 (Sup. Ct. New York County, 2011):

• Courts have held that secondhand smoke "qualifies as a condition that invokes the protections of Real Property Law § 235-b under the proper circumstances" (Poyck v. Bryant, 13 Misc 3d 699, 702 [Civ Ct, NY County 2006]; see also Upper E. Lease Assoc., LLC v Cannon, 30 Misc 3d 1213 [A], *3, 2011 NY Slip Op 50054 [U] [Dist Ct, Nassau County 2011]). "As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction" (Poyck, 13 Misc 3d at 702).
  
  While a "single occurrence" of smoke is insufficient, "the court must look to the operative facts to determine whether or not the secondhand smoke was so pervasive as to actually breach the implied warranty of habitability and/or cause a constructive eviction" (id,; see also East End Temple v Silverman, 199 AD2d 94 [1st Dept 1993] [one time occurrence of smoke did not amount to a substantial and material deprivation of the use and enjoyment of the premises]).

(3) Applying this theory to New York apartment building landlords as well should not be unexpected, either. See, for example, Francis v. Kings Park Manor, Inc., 91 F. Supp. 3d 420 (E.D.N.Y. 2015):

• "Although a landlord may lack direct control over the actions of another tenant, courts have often applied the implied warranty of habitability to conditions beyond the landlord's direct control." [quoting] Upper E. Lease Associates, LLC v. Cannon, 30 Misc.3d 1213(A), 924 N.Y.S.2d 312, 2011 WL 182091 (Dist.Ct.2011) aff'd, 37 Misc.3d 136(A), 961 N.Y.S.2d 362 (App.Term 2012).
  
  Furthermore, in Poyck v. Bryant, 13 Misc.3d 699, 705, 820 N.Y.S.2d 774, 780 (Civ.Ct., New York County 2006), the court held that a tenant's smoking habits may give rise to a duty to act, to prevent "unreasonable interference" with the rights of other tenants.

Go here for summaries of some other Secondhand Smoke Cases Involving Tenants.