Second Hand Smoke—What Are Your Rights as Property Owners or Lessees in New York?

As we all know, second hand smoke is never a pleasant experience; tight living quarters make it even worse.

Most people in apartment complexes come in with the notion that there will be some unpleasant smells associated with living with other people, and are not bothered by smoke so long as it is contained. However, sometimes that is just not possible with smoke. If this is the case, it is reasonable that a tenant would become annoyed. But what does what is a tenant to do? They can call the landlord, ask the smokers to stop, plug up any holes, etc, but what happens when they find that their efforts were in vain?

The good news is that there is something you can do. After you let your landlord know that there is a serious second hand smoke issue, preferably in writing, tenant may bring suit against their landlords on the grounds of implied warranty of habitability. Under this theory, courts have looked to the facts and circumstances of the situation to determine whether the second hand smoke is so pervasive as to continue constructive conviction, i.e. your living situation was so badly that you were not kicked out by your landlord but you might as well have been. See Poyck v. Bryant, 31 Misc.3d 699 (N.Y County Civil Ct. 2006).

Real Property Law § 235-b imposes a warranty of habitability in every landlord-tenant relationship where the landlord impliedly warrants:

“First, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties, and third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health, or safety.”

See Id. at 701; Park W. Mft. Corp., 47 N.Y.2d 316 (1979). In other words, landlords are held to a high level of care by the courts to ensure that tenants are living comfortably. In order to determine whether there has been a breach of this duty, courts will measure the issue “‘in the eyes of a reasonable person’ [and] not in a vacuum which ignores the ‘essence of the modern dwelling unit.'” Poyck, at 701.

Put more simply, if you have someone who is above you smoking up a storm, and it is ivading your apartment where your sick mother lives with you and cannot breath smoke in, courts may find in your favor and find this to be a breach of warranty of habitability, and therefore constitute constructive eviction. However, if you have someone down the hall who smokes a couple of cigarettes a week, but not consistently, and sometimes it smells, courts are not going to find this to be a breach of the implied warranty of habitability.

The Bottom line is that this is a very fact-based analysis and the tenant really needs to show that the condition is detrimental to their life, health, or safety on a consistent basis.