Two recent cases address issues that arose when a tenant’s smoking and the resulting intrusion of second-hand smoke into a neighboring tenant’s apartment created objectionable living conditions. In Upper East Lease Associates, LLC v. Cannon, 30 Misc.3d 1213(A), 924 N.Y.S.2d 312 (2011, Dist. Ct., Nassau Co.; Ciaffa, J.) the Court held that landlords of “high-rise apartment” buildings have a “duty to prevent one tenant’s habits from materially interfering with another tenant’s right to quiet enjoyment. When a tenant’s smoking results in an intrusion of second-hand smoke into another tenant’s apartment, and that tenant complains repeatedly, the landlord runs a financial risk if it fails to take appropriate action.” In this case, the landlord commenced an action against the tenant seeking monetary damages for breach of a residential apartment lease. Tenant served an answer which included counterclaims alleging that: landlord violated the warranty of habitability owed to defendant; landlord failed to address unsafe and intolerable conditions; and, the tenant was deprived of the beneficial use and enjoyment of the premises forcing it to abandon the premises resulting in a constructive eviction. The tenant also alleged that the claimed breach of warranty of habitability entitled her to a refund of the rent previously paid and damages for breach of the lease.The tenant’s lease contained a provision specifically addressing the subject of second-hand smoke under which the tenant specifically acknowledged that the infiltration of second-hand smoke into the common areas of the building or into other apartments may constitute a nuisance and health hazard and agreed to prevent the infiltration of second-hand smoke into the common areas of the building or into other apartments. The lease clause provided that the prevention of such second-hand smoke infiltration was “OF THE ESSENCE” to the lease.This action was commenced after the apartment immediately beneath the defendant-tenant’s apartment became occupied by a new tenant in September, 2008. The new tenant’s lease contained the identical lease language regarding second-hand smoke. The next month, tenant began to complain to landlord about second-hand smoke infiltrating into the tenant’s apartment. The landlord attempted to caulk and seal around vents that may have been conductors of cigarette smoke from the neighbor’s apartment, but these measures were ultimately ineffective. The tenant requested to be relocated to a different apartment; the landlord initially agreed but sought an agreement to a new one year lease by the tenant which the tenant refused. The second-hand smoke problem continued unabated. Tenant did not pay January 2009 rent and vacated the apartment February 4, 2009.Emphasizing that the rights and obligations of the parties are governed by the provisions of the lease, together with the statutory implied warranty of habitability found in Real Property Law §235-b, the Court held that the key question revolved around “whether or not the second-hand smoke was so pervasive as to actually breach the implied warranty of habitability and/or cause a constructive eviction.” Recognizing that the answer was fact-sensitive, the Court found the second-hand smoke was “enough of a nuisance to warrant action by the landlord. Without doubt, the landlord, at least initially, took general appropriate actions to abate the nuisance. However, when those initial actions proved ineffective, the landlord was obligated to take further steps to alleviate the condition, or to accommodate defendant in a different apartment.” Thus, the Court found that under the “totality of circumstances” the landlord failed to meet its obligations to the tenant and precluded the landlord from pursuing its claim for rent that accrued after the tenant vacated the apartment. The Court also found that for the period of time the tenant occupied the apartment while “enduring the neighbor’s second-hand smoke” an abatement of rent was warranted. The Court granted a 10% rent abatement for October 2008, a 20% rent abatement for November 2008, a 30% rent abatement for December 2008, and a 40% rent abatement for January 2009. Because tenant vacated the apartment February 4, 2009, no abatement was granted for that month.

It is important to note that the Court’s decision was dependent not only on the specific facts related to tenant’s complaints and landlord’s response, but also on the specific lease clause regarding second-hand smoke. While the Court may have reached the same conclusion if the lease was silent regarding second-hand smoke, that is not a certainty. Tenants who are concerned about second-hand smoke should attempt to obtain appropriate protections in their leases and landlords should endeavor to take appropriate and documented remedial measures upon receipt of tenant complaints, especially if a lease contains terms recognizing the potential nuisance of second-hand smoke.

In Ewen v. Maccherone — N.Y.S.2d—(App. Term 1st Dep’t 2011) 2011 WL 2088967 condominium unit owners sued their neighbors (not the condominium) for negligence and private nuisance alleging that the defendants’ excessive smoking resulted in second-hand smoke seeping into their unit. The Supreme Court, Appellate Term, held that the individual defendant’s smoking was not so unreasonable as to constitute a private nuisance and because there was no specific statute, by-law or house rule addressing second-hand smoke, the defendants owed no duty to plaintiffs to refrain from smoking in their unit.

In addition to the second-hand smoke from the neighbor’s excessive smoking, plaintiffs alleged the effect of the second-hand smoke was exasperated by a building-wide ventilation or “odor migration construction design problem.” Plaintiffs alleged that the second-hand smoke filled their kitchen, bedroom and living room causing them to vacate the unit and resulting in personal injury. The defendants moved to dismiss the complaint because the condominium’s declaration and by-laws did not prohibit smoking in the residential units and because the plaintiffs failed to join the condominium as a necessary party. The Appellate Term concluded that the plaintiffs failed to state a cause of action for private nuisance because the neighbor’s “conduct in smoking in the privacy of their own apartment was not so unreasonable in the circumstances presented as to justify the imposition of tort liability against them . . Critically, defendants were not prohibited from smoking inside their apartment by any existing statute, condominium rule or by-law. Nor was there any statute, rule or bylaw imposing upon defendants an obligation to ensure that their cigarette smoke did not drift into other residences.” The Court continued that “to the extent odors emanating from a smoker’s apartment may generally be considered annoying and uncomfortable to reasonable or ordinary persons, they are but one of the annoyances one must endure in a multiple dwelling building, especially one which does not prohibit smoking building-wide.” The Court determined that “in the absence of a controlling statute, bylaw or rule imposing a duty, public policy issues militate against a private cause of action under these factual circumstances for second-hand smoke infiltration” and dismissed the nuisance claim. The Court, having found that the defendants did not have a duty to refrain from smoking inside their apartment, also dismissed plaintiffs’ negligence claim.

The Courts in both these cases looked to the relevant controlling documents to support their respective conclusions. The Court in Upper East Lease Associates, LLC relied upon the relevant lease provision recognizing the potential “nuisance” of second-hand smoke to support its conclusion that the landlord owed a duty to protect its tenants, in certain factual circumstances, from second-hand smoke. Likewise, the Court in Ewen relied upon the absence of a controlling statute, condominium bylaw or rule imposing a duty on the unit owners in determining that, under the factual circumstances presented, no private claim existed.

Thus, landlords, tenants and condominium unit owners and boards should take care in drafting and reviewing the relevant controlling documents, whether a lease, bylaws or house rules, to delineate the rights and obligations of landlords, tenants, condominium boards and unit owners in connection with second-hand smoke.