Is The Smoke Beginning To Clear For Coops Regarding Smoking?

I think many attorneys would agree that one of the most common problems encountered from board members and property managers has to do with smoking in individual apartment units. While the law is clear in the City of New York about smoking in public places–bars and restaurants–the law is a work in progress regarding smoking in individual co-op units. There are several cases that have been decided which shed some light on this issue and may give attorneys, board members, and property managers guidance. The New York County Supreme Court recently issued a decision in the case of Reinhard v. Connaught Tower Corp. in November 2011, and we analyze this case below.

An early leading case on this issue is the New York Civil Court case of Poyck v. Bryan, decided in 2006. This case held that secondhand smoke from a neighboring apartment qualifies as a condition that invokes the protections of the Real Property Law Section 235-b. New York Real Property Law (RPL) § 235- b implies a “warranty of habitability” in every residential lease in the State of New York. The owner of the property, which would include co-op boards, must warrant to the tenant-shareholder that the premises are “fit for human habitation.” The Poyck decision cited a report by the U.S. Surgeon General, which stated that secondhand smoke poses a significant health hazard. Accordingly, the court noted that secondhand smoke is just as insidious and invasive as other health conditions such as noxious odors, chemical fumes, loud noises, dust, and water leaks. All these condition had been found in previous decisions to violate Real Property Law Section 235-b.

Reinhard v. Connaught Tower Corp. is a very recent decision by the Supreme Court, NY County. In that case, a co-op shareholder sued the building because of secondhand smoke. The court denied the building’s summary judgment motion where there was evidence that there was more than a single occurrence of smoke in her apartment. The evidence cited by the court included the Plaintiff ‘s testimony in her deposition that secondhand smoke has caused her to suffer from “tightness in her chest, coughing, headaches, and watering eyes.” Also, a contractor who had made cuts into the wall testified that there was a smell of cigarettes inside the walls. A neighbor testified that she smelled cigarette smoke in plaintiff ‘s apartment on several occasions. A representative from the property manager testified that when he inspected the apartment, he detected a very faint odor of cigars in the bedroom. Finally, a hygienic engineer hired by plaintiff testified that he inspected the apartment (about four months after the property manager’s inspection) and detected a strong, distinctive odor of cigars.

In Reinhard, the court refused to summarily dismiss the negligence cause of action because it pointed out that Multiple Dwelling Law § 78 “imposes upon a landlord a duty to persons on its premises to maintain them in a reasonably safe condition.” It also reasoned that the building had notice of the condition because plaintiff had made complaints and because a vice president of the property manager had inspected the apartment and detected a faint smell of cigar smoke. “As the Cooperative did not take any action to remedy the condition alleged,” the court reasoned, “there [were] questions of fact as to whether the Cooperative Corporation acted reasonably under the circumstances in failing to remedy the smoke condition.”

Also, in Reinhard, the court denied the building summary judgment on this cause of action. The Plaintiff alleged a breach of the duty under the lease to keep the building in good repair. The building argued that decisions about how to maintain the building are within the board’s discretion. The building also argued that in order to remedy the condition, it would have had to breach its leases with the other tenants by prohibiting them from smoking in their apartments.

It seems that if a shareholder-tenant complains about a neighbor’s smoking, the board should not just ignore it or claim they have no control. They can issue a notice to cure based on the lease provision/rule which prohibits tenant/owners from interfering with their neighbors quiet enjoyment and/or prohibits against noxious odors. A co-op could be liable under warranty of habitability, negligence, or breach of the proprietary lease grounds. The lesson of this case was that co-op boards must do what they can to make best efforts to reduce the effects of secondhand smoke in their buildings. Such efforts should include banning smoking in elevators and commons areas and ensuring proper ventilation in a shareholders apartment to reduce the effects of secondhand smoke in nearby apartments. Unfortunately, the Courts or Legislature has not been able to provide more guidance to co-op boards in dealing with this issue in recent years. It is still a “gray area” of the law and will need some more time to see how it develops. We will keep you posted.

Geoffrey Mazel, Esq., is a member Hankin & Mazel, PLLC, located in midtown Manhattan. This law firm represents over 9,000 units of co-op/condo housing.