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Cigarette odor: complain to the neighbors or the landlord?

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Cigarette odor: complain to the neighbors or the landlord?

Postby jonathan_f » Thu Jun 04, 2009 11:17 am

Hi--

So my mother just moved into a new apartment and there's this...distressing odor of cigarette smoke in the hallway and also seeping into her apartment. It comes in from the hallway whenever the door is open and seeps in from under the door and even through the windows. I know it's the apartment next door because when I pass by and their door is open, a huge waft of the odor emanates out and hits me in the face.

The neighbors next door have been living there a long time, at least a decade. I have little hopes of either myself or my mother persuading them to change their smoking habits. Not only that, but they strike me as people who would hold a grudge and become even nastier if we complained to them directly. The question is--is it the landlord/management's responsibility to make sure the odor doesn't get into her apartment, or is the only recourse to futilely plead with the neighbor's to stop smoking so much? Is there anything else that can be done?

Thanks kindly,
Jonathan
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Postby lofter1 » Thu Jun 04, 2009 1:28 pm

Search the forum for "Second Hand Smoke' or "Cigarette"

See: http://tenant.net/Court/Hcourt/index.html?x=1695

Housing Court Decision Summaries

Poyck v. Bryant
Sep. 1, 2006


Appellate Court:

Trial Court:
Civil Court, New York County

Trial Judge:
Hon. Shlomo Hagler

Type of Action or Proceeding:
Plenary Action -- Nonpayment of Rent

Issues/Legal Principles:
Tenant's claim of constructive eviction as a result of second hand smoke is viable in defense of plenary action to collect unpaid rent following vacatur prior to expiration of lease.

Source:
NYLJ, 22:1, Sep. 1, 2006

Referred Statutes:
RPL §235-b, CPLR §2221(e), CPLR §3212

Summary:
Landlord moved to strike tenant's defense of constructive eviction and for summary judgment in an action to collect rent following tenant's vacatur of the subject premises. Tenant argued that he and his wife were constructively evicted from their home as a result of second hand smoke emanating from their neighbor's apartment. The new neighbors started smoking in the common hallway. The tenant took reasonable efforts to mitigate this condition by purchasing 2 HEPA air filters and operating them round the clock, sealing the apartment entry door with weather stripping and a draft barrier. Tenant argued that the landlord was repeatedly notified of this condition and that such a condition was detrimental to his wife's health as she was recovering from cancer. When the landlord took no steps to curtail the hazardous condition, tenant vacated upon 30 days notice.

The landlord argued that he cannot be held responsible for acts that are not within his control. The Court held that while there are no cases dealing with cases of second hand smoke in the context of the implied warranty of habitability, the landlord has a duty to protect a tenant's right to privacy and that the unwanted same comes in many guises such as noise, smells, odors, fumes, dust, water, and may include second hand smoke. The Court further held that a landlord is responsible to make reasonable efforts to abate hazards and nuisances even when created by third parties not under his control. While the implied warranty of habitability does not apply to a condominium board, it would apply to the owner of a building. The Court determined that there were triable issues of fact and as a a result, denied the landlord's motion to strike tenant's affirmative defenses and for summary judgment.
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Postby jonathan_f » Thu Jun 04, 2009 2:37 pm

Oh, wow--thanks. I searched through the board a little, but I guess I didn't hit on the right search string.
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