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SAY NO TO SECONDHAND SMOKE!

It's a decision that made the news and has been analyzed by commentators in such publications as The New York Times and the New York Law Journal. But the outcome in Poyck v. Bryant, didn't come as a surprise to those of us in the landlord-tenant arena who are all too familiar with the existing statutory protections which govern residential tenants' safety and welfare. (In actuality, we were wondering what took so long.)
In a case of first impression, a Judge of the New York County Civil Court was asked to decide whether secondhand smoke -- which permeated a residential-building's hallways and an adjacent apartment unit -- somehow violated state law and triggered conditions which made the space untenantable for a smoker's neighbors.
In the absence of any prior caselaw on the subject, the Honorable Shlomo S. Hagler concluded that secondhand smoke could comprise a breach of the state's "implied warranty of habitability" -- Real Property Law section 235-b -- a statute which imposes an affirmative duty or obligation on lessors to ensure that residential units are free of conditions which would pose a threat to the occupants' health, safety and well-being, even when the violative acts are caused by a third party.
Michelle and Stan Bryant were the tenants of a deregulated fair-market space situated in a condominium building located at 22 West 15th Street, here in Manhattan. In March of 2001, new neighbors -- who happened to be smokers -- moved into the adjoining apartment and their tobacco smoke wafted into the Bryants's unit (and permeated the building's common areas). Although the Bryants noted their complaints (both orally and in writing) to the building's superintendent, the unit's owner (Peter Poyck), and the owner's attorney, the smoke condition continued unabated. As a result, on August 1, 2001, the Bryants opted to break their lease (which was then scheduled to expire on December 21, 2002) and relocate to another apartment.
When Poyck later sued to recover unpaid rent arrears, the Bryants countered that no sums were due as a result of the owner's breach of the statutory warranty of habitability and conditions which triggered a constructive eviction. [A "constructive eviction" occurs when a landlord's "wrongful acts" or omissions "substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises...The tenant, however, must abandon possession in order to claim there was a constructive eviction." Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970).]
As Judge Hagler observed:

While there appears to be no reported cases dealing with secondhand smoke in the context of implied warranty of habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, and water leaks and extreme dust penetration. Indeed, the U.S. Surgeon General, the New York State Legislature and the City of New York City Counsel declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard .... Therefore, this Court holds as a matter of law that secondhand smoke qualifies as a condition that invokes the protections of RPL section 235-b under the proper circumstances. As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction. [citations omitted]
Although Poyck claimed he could not be held legally responsible for his neighbors' conduct, the Civil Court found that argument to be "misplaced," noting as follows:
While the landlord contends that he had no control over the neighbors in apartment 5-C, he failed to offer any evidence that he took any action to eliminate or alleviate the hazardous condition. The landlord could have asked the board of managers of the condominium to stop the neighbors from smoking in the hallway and elevator as well as to take preventive care to properly ventilate unit 5-C so that the secondhand smoke did not seep into the Bryants' apartment. Specifically, Real Property Law section 339-v(1)(i) mandates that condominium by-laws restrict the use and maintenance of both the units and common elements such as the hallways and elevators so as to "prevent unreasonable interference with the use of respective units and of the common elements by several unit owners." The board of managers and even the landlord could have commenced an action for damages or injunctive relief for non-compliance with the by-laws and decisions of the board of managers pursuant to the Condominium Act .... Moreover, in the case of "flagrant or repeated violation" by a unit owner, the Condominium Act also authorizes the board of managers to impose sufficient surety to ensure future compliance with their by-laws and decisions. Real Property Law section 339-j.
In fact, for some thirty years, our appellate courts "have continuously held that the implied warranty of habitability can apply to conditions beyond a landlord's control." And this case presented no exception to that rule.
As a result of this decision, apartment dwellers may want to think twice before "lighting up" in the privacy of their own homes. Not only can such conduct subject them to eviction, but there may also be liability for damages arising from any rent (or "maintenance") credits that may issue together with such other compensation that be awarded to neighbors under an array of cognizable legal theories, like negligence or breach or contract.
Unless an appellate court chimes in to the contrary, tobacco users can expect to be smoked out ... to the suburbs.
For a copy of the Civil Court's decision in Poyck v. Bryant, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26343.htm

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