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Smoke Gets in Your Eyes – And in Your Apartment

Does secondhand smoke emanating from an apartment give rise to a breach of the warranty of habitability? That was the issue in Poyck v. Bryant, a landmark ruling that could have profound consequences for co-ops and condos throughout the city. Most urban dwelling involves multiple neighbors living above, below, and beside each other. Who is responsible to prevent discomfort and/or health hazards from noise, smells, odors, fumes, dust, water, and secondhand smoke?

Peter Poyck, the owner and lessor of condominium unit 5-D located at 22 West 15th Street in Manhattan, began this action to collect rent and late charges from his sublessors for the months of August through December 2001, at a rate of $2,597 per month. Subtenants Stanley and Michelle Bryant wrote back, denying the allegation and asserting counterclaims for breach of the warranty of habitability. The Bryants were the tenants for a two-year term from January 1, 2001, through December 31, 2002. The Bryants began living there in 1998 and vacated at the end of August 2001.

In March 2001, new neighbors moved next door to the Bryants. The newcomers constantly smoked in the common fifth-floor hallway and in apartment 5-C. The secondhand smoke penetrated the walls. At that time, the Bryants complained to the superintendent, Frank Baldanza, about the hazardous condition. The super allegedly spoke to the defendants’ next-door neighbors to no avail. The smoke continued unabated.

When the super’s efforts failed, Stanley Bryant wrote a letter on June 29, 2001, to the super and to Peter Poyck as well as to Poyck’s attorney, Charles Corso, seeking a solution to the smoke problem and informing them: “To date, their tobacco smoke continues to permeate this end of the fifth-floor hallway and my home.” This was not simply a matter of unpleasant odors; it represented an ongoing health hazard for Bryant’s wife who was recovering from her second cancer surgery and who claimed to be extremely allergic to such smoke. Before the current tenant moved into 5-C, this problem did not exist on the fifth floor.

To try to remedy the situation, Bryant sealed his apartment entry door with weather-stripping and a draft barrier. He operated two HEPA air filters around the clock, incurring additional electric charges. Despite this, the Bryants could still smell smoke from 5-C in their apartment.

Stanley Bryant wrote another letter, this time to the owner/landlord of his unit: “If you can help in any way to remedy this problem, we would be extremely appreciative. Failing that, we must consider finding a healthier living situation.”

Nonetheless, the apartment owner did nothing to curtail the neighbors’ smoking. About 30 days later, the Bryants had decided to move out. They wrote a letter to their landlord, dated August 1, 2001, notifying him of their decision: “Due to my wife’s continuing health concerns and our most recent and apparently ongoing ‘smoking’ issue with our next door neighbor (please refer to our letter to Frank Baldanza dated June 29th) we have found it necessary to look elsewhere for more appropriate living quarters. Please note that we will be vacating this apartment by the end of August, 2001.”

In this case, neither party asserted claims against the condominium’s board of managers because the implied warranty of habitability under the law did not apply to the relationship between the board of managers of a condominium and an individual unit-owner. However, the Bryants, as tenants of unit 5-D, could rely on Real Property Law (RPL), Section 235-b, against Poyck, the only “landlord” in this action.

The court said that the thrust of Poyck’s argument was that he could not be held liable for the actions of third parties beyond his control, such as the neighbors in unit 5-C. The court held that this argument was misplaced since the Court of Appeals had clearly stated that, under Section 235-b, the acts of third parties are within the scope of a landlord’s responsibility. The courts had continuously held that the implied warranty of habitability could apply to conditions beyond a landlord’s control.

In the court’s view, the key to avoiding such unneighborly behavior was for the neighbor to follow the often-forgotten “golden rule”: love your neighbor as yourself. The landlord also has an obligation to ensure that the conditions do not render the apartment “unsafe and uninhabitable” or prevent the premises from serving their intended function of residential occupation. When neighbors fail to respect each other and the landlord does not act, the law imposes its will on both through the statutory-implied warranty of habitability under Section 235-b.

In the 1979 landmark case, Park West Management Corp. v. Mitchell, the Court of Appeals defined the history and parameters of the warranty of habitability. RPL Section 235-b was enacted in August 1975 to provide modern urban dwellers with much-needed protections and rights to compel landlords to make necessary repairs and essential services. It placed the tenant in parity legally with the landlord. For more than 30 years, this powerful law has imposed a warranty of habitability in every landlord-tenant relationship where the landlord promises that the premises are fit for human habitation; that the condition of the premises is in accord with the uses reasonably intended by the parties; and that the tenants are not subjected to any conditions endangering or detrimental to their life, health, or safety.

The court noted that the scope and breadth of this section was far-reaching. Landlords must warrant against “latent” and “patent” conditions throughout the entire tenancy “occasioned by ordinary deterioration, work stoppage by employees, acts of third parties or natural disaster...” The standard for a breach of the implied warranty is measured “in the eyes of a reasonable person,” not in a vacuum which ignores the “essence of the modern dwelling unit.” Section 235-b was intended to provide an objective standard for “those essential functions which a residence is expected to provide.”

The court said that while there appeared to be no reported cases dealing with secondhand smoke in the context of the implied warranty, secondhand smoke was just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, water leaks, and extreme dust penetration. Indeed, the U.S. Surgeon General, the New York State Legislature and the New York City Counsel declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard. Therefore, the court held that, under the proper circumstances, secondhand smoke qualified as a condition that invoked the protections of Section 235-b. As such, the court held it axiomatic that secondhand smoke could be grounds for eviction.

Of course, the court said that it had to consider the operative facts to determine whether or not the secondhand smoke was so pervasive as to actually breach the implied warranty.

While Poyck contended that he had no control over the neighbors in apartment 5-C, in the court’s view, he failed to offer any evidence that he took any action to eliminate or alleviate the hazardous condition.

Poyck could have asked the board of managers of the condominium to stop the neighbors from smoking in the hallway and elevator, as well as 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) mandated that condominium bylaws 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 begun an action for damages or injunctive relief for noncompliance with the bylaws and decisions of the board of managers under the Condominium Act. Moreover, in the case of “flagrant or repeated violation” by a unit-owner, the Condominium Act, Real Property Law Section 339-j, also authorizes the board of managers to impose sufficient surety to ensure future compliance with their bylaws and decisions.

Inasmuch as there were issues of fact as to whether the secondhand smoke breached the implied warranty of habitability and caused a constructive eviction, Poyck’s motion to strike and/or dismiss the Bryants’ defenses and counterclaims was denied.

Comment: This is a case of first impression and may signal the first of many cases that could lead to severe restraints on the ability of co-op owners to smoke in their apartments, especially when neighbors complain of tobacco odors. While secondhand tobacco odors have long been viewed as a nuisance, they are now being treated as a health hazard that may be regulated. Boards must be vigilant to this hazard and act to remedy what may now be viewed as a breach of the warranty of habitability. That switch carries real consequences for a board.

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