Smoking Bans Can Be Enforced Even Without a Smoking Gun

Susan Reinhard can’t seem to keep out of the headlines. She first came to notice last year when a state Supreme Court judge sent shivers through New York City co-ops by ruling that Reinhard, a shareholder at the Connaught Tower co-op at 300 East 54th Street, was entitled to $120,000 in back maintenance, interest, and attorney’s fees after she claimed that secondhand smoke had permeated her apartment and rendered it uninhabitable. For many co-op board members, it seemed that the sky was falling. 

That was not the case. This spring, an appeals court overturned the earlier ruling, saying Reinhard had failed to prove that smoke odor was present in her apartment on a consistent basis or that it was sufficiently pervasive to affect the health and safety of occupants. 

“Reinhard’s giving the farm back to the co-op,” said attorney Rob Braverman, a partner at Braverman Greenspun, who followed the case closely but was not involved in it. “She went from winner to loser.”

In the wake of the appeals court decision, numerous property managers reportedly began advising their boards that co-ops cannot be held liable for failing to act on complaints about smoking. That is not the case. “The decision should not be taken to indicate that cooperatives and condominiums are off the hook for secondhand smoke claims,” the law firm Smith, Gambrell & Russell stated. “[They] may still risk significant liability if they do not ban or strictly regulate smoking in their buildings.” 

That statement is borne out by a recent court ruling in which a co-op board on Long Island successfully evicted a shareholder who violated a smoking ban. The keys to the successful eviction were the implementation of a smoking ban, then the amassing of solid evidence that the ban was being ignored – and thus that the co-op’s warranty of habitability was being breached. 

“The courts are telling us that a co-op has a warranty of habitability,” says attorney Emanuela Lupu, a senior associate at Smith, Buss & Jacobs, who represented the 80-unit co-op in the case. “We spent over two years preparing for this case. We didn’t have a smoking gun – no firsthand eyewitnesses who saw the shareholders smoking in their apartment. How do you build your case when you can’t enter the apartment? The key was the testimony of witnesses.” 

Lupu called 10 witnesses – neighbors, an indoor environmental consultant, and the property manager – who presented evidence, including detailed logbooks documenting when they had smelled smoke. The consultant was granted entry to the alleged smokers’ apartment to conduct “swipe tests” for nicotine residue, which came back positive from a laboratory. 

In the end, Lupu says, “the court upheld a factual finding that a shareholder had violated the proprietary lease.” 

Pursuing such cases isn’t cheap. “But that’s the cost of doing business in New York, and the board has an obligation to maintain habitable apartments for all residents,” Lupu says. “That habitability stretches to smoking. A lot of boards feel there’s nothing they can do. This is proof that that’s not the case.”