Smoke gets up landlord’s nose in court

In far-reaching decision, court rules that landlords must address tenant’s secondhand smoke concerns or face consequences such as broken leases and rent reductions.

By Amanda Fung
Crain’s New York Business, February 8, 2011

A bedbug invasion isn’t the only thing that New York City landlords have to worry about; smoking tenants may also become a major problem.

Last week, a District Court judge in Nassau County ruled that an Upper East Side tenant could break her lease and pay reduced rent because she had complainted about a neighbor’s cigarette smoking and the landlord failed to take appropriate action to alleviate the secondhand smoke. The ruling was the first of its kind because most smoking-related matters between landlords and tenants do not go to trial, experts said.

In this particular case, landlord Upper East Lease Associates sued a tenant for roughly $12,000 in unpaid rent. The tenant claimed that she had complained about secondhand smoke in her apartment and was fed up so she vacated her unit at 215 E. 96th St. with four months left on her lease. She had stopped paying rent two months before she moved out.

“When a tenant’s smoking results in an intrusion of secondhand smoke into another tenant’s apartment, and that tenant complains repeatedly, the landlord runs a financial risk if it fails to take appropriate action. This case involves such a situation,” said the court ruling. “The landlord’s failure to take appropriate action, over a period of several months, to rectify a secondhand-smoke nuisance, justifies rent abatement, and excuses the tenant from any obligation to pay rent after her constructive eviction.”

While the landlord can appeal the decision, it is unlikely because the cost of litigation is more than the actual money sought in the suit, according to observers.

“I’m not happy with the decision,” said Jeffrey Maidenbaum of the law firm of Maidenbaum & Associates, who represented the landlord. “… I do feel like we won the battle but lost the war,” he said, adding that while the judge ruled in favor of the landlord by requiring the tenant to pay at least some abated rent for the two months she skipped, the rent lost from the remaining time on the lease cancelled that out.

While there won’t likely be an avalanche of similar cases, tenants will begin to use secondhand smoke as an offensive measure against landlords, said Stuart Berg, a partner at Kurzman Eisenberg Corbin & Lever. “Landlords should take notice and start modifying leases to become stricter in terms of who to lease apartments to.”

For co-ops, it may become a trickier situation. Mr. Berg is working with two co-ops in the city now, where the co-op boards are requiring smoking tenants to install ventilation or air filters in the apartment. Dealing with the issue is a little bit harder in co-ops because they have to vote and amend co-op bylaws. “It is easier for non-co-op residential landlords to deal with it by modifying leases and not permitting smoking in the apartment,” he said. “Co-ops do not have that flexibility.”

CLARIFICATION: A District Court judge in Nassau County ruled that a tenant could break her lease and pay reduced rent because her landlord failed to take action to alleviate secondhand smoke. The judge was unclear in an earlier version of this article.

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