Appeals Court Reverses Big Smoking Verdict Against Co-op

A year ago, state Supreme Court Judge Arthur Engoron sent shivers through New York City’s co-op community when he ruled that Susan Reinhard, a shareholder at the Connaught Tower co-op at 300 East 54 Street, was entitled to $120,000 in back maintenance, interest, and attorney’s fees after she claimed secondhand smoke had permeated her apartment and rendered it uninhabitable. 

Last week, the Supreme Court’s Appellate Division, First Department, overturned that verdict – even ruling that Reinhard is now on the hook not only for her back maintenance, but also for the co-op’s attorney’s fees. “In particular,” the court wrote, “(Reinhard) failed to show that the (smoke) odor was present on a consistent basis and that it was sufficiently pervasive as to affect the health and safety of occupants.”

“Reinhard’s giving the farm back to the co-op,” says attorney Rob Braverman, a partner at Braverman Greenspun, who was not involved in the case but followed it closely on behalf of his co-op and condo board clients. “This verdict is a complete 180. She went from a winner to a loser.”

The appeals court ruling overturns the Supreme Court’s earlier determination that secondhand smoke rendered Reinhard’s apartment uninhabitable, breached the proprietary lease, and led to a constructive eviction.

Braverman says the reversal is sure to elicit a sigh of relief from co-op boards. “The concern within the industry,” he says, “was that the (Supreme Court’s) language was quite sweeping. Co-op boards were, in effect, required to be ensurers of smoke-free environments. What this (Appellate Division) decision does is it re-levels the playing field. The mere existence of secondhand smoke will not give rise to liability.”

As an added bonus, Braverman adds, “This decision does not affect a co-op board’s right to implement a smoking ban.”

For co-op boards, this verdict qualifies as a win-win.