The novel issue to be determined herein, ruled this court, is whether secondhand smoke emanating

from a neighbor gives rise to a breach of the implied warranty of habitability and a constructive eviction under the realities of modern urban dwelling.

Implied Warranty of Habitability

In the landmark case of Park West Management Corp. v. Mitchell (1979), the Court of Appeals defined the history and parameters of RPL 235-b or the implied warranty of habitability. RPL 235-b was enacted in August, 1975, to provide modern urban dwellers with much needed protections and rights to compel landlords to make necessary repairs and essential services. In other words, RPL 235-b placed the tenant in parity legally with the landlord. For more than 30 years, this powerful law continues to impose a warranty of habitability in every landlord-tenant relationship where the landlord impliedly warrants as follows:

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;

Third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety.

The scope and breadth of RPL 235-b is far-reaching. Landlords must warrant against latent and patent conditions throughout the entire tenancy occasioned by ordinary deterioration, work stoppage by employees, acts of third parties, or natural disaster The standard for a breach of the implied warranty of habitability is measured in the eyes of a reasonable person not in a vacuum which ignores the essence of the modern dwelling unit. RPL 235-b was intended to provide an objective standard for those essential functions which a residence is expected to provide Solow v. Wellner (1995).

Secondhand Smoke

While there appears to be no reported cases dealing with secondhand smoke in the context of implied warranty of habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise,and water leaks and extreme dust penetration. Indeed, the U.S. Surgeon General, the New York State Legislature, and the City of New York City Counsel declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard.

Therefore, this court holds as a matter of law that secondhand smoke qualifies as a condition that invokes the protections of RPL 235-b under the proper circumstances.

Of course, the court must look to the operative facts to determine whether or not the secondhand smoke was so pervasive as to actually breach the implied warranty of habitability and/or cause a constructive eviction. This court will now turn to the facts of this case to make such a determination.

Procedural History

Plaintiff Peter Poyck commenced this plenary action to collect rent and late charges for the months of August 2001 through December 2001, at $2,597 per month. Defendants Stan Bryant and Michelle Bryant interposed a written answer, inter alia, denying the allegations of the complaint and asserting their third and fourth affirmative defenses and first and second counterclaims for breach of warranty of habitability and constructive eviction due to secondhand smoke.

In or about June 2005, plaintiff moved for an order pursuant to CPLR 3212 granting him summary judgment striking and/or dismissing the defendants third and fourth affirmative defenses and first and second counterclaims. The motion was adjourned to October 14, 2005.On the return date, this court denied the motion without prejudice on procedural grounds.

In or about March 2006, plaintiff moved for an order pursuant to CPLR 2221(e) and 3212 renewing his prior motion for summary judgment striking and/or dismissing defendants third and fourth affirmative defenses and first and second counterclaims. The motion was adjourned to August 1, 2006. Defendants opposed the motion.

At all times relevant hereto, plaintiff was the owner and lessor of condominium unit 5-D located at 22 West 15th Street, New York, N.Y. By virtue of a residential lease dated November 11, 2000, defendants were the tenants or lessees of the subject premises for a two-year term from January 1, 2001 through December 31, 2002, at $2,597 per month. Defendants allegedly moved into the subject premises in 1998 and vacated at the end of August 2001.

Uncontroverted Facts

After living in the subject premises for approximately three years, in or about March 2001, new neighbors moved next door to defendants. The new neighbors constantly smoked in the common fifth floor hallway and in apartment 5-C. The tobacco smoke or secondhand smoke penetrated into the subject premises. At that time, defendants complained to the subject buildings superintendent, Frank Baldanza (super) about the hazardous secondhand smoke condition. The super allegedly spoke to the defendants next door neighbors to no avail. The incessant smoke continued unabated.

When the supers efforts failed, defendant Stanley Bryant wrote a letter dated June 29, 2001 to the super and to plaintiff Peter Poyck as well as to Poycks attorney-in-fact, Charles Corso, seeking a solution to the hazardous smoking problem and informing them that they may consider a healthier living situation as follows:

To date, their [next door neighbors in apartment 5-C] tobacco smoke continues to permeate this end of the fifth floor hallway and my home. This is not simply a matter of unpleasant odors; it represents an ongoing health hazard for my wife who is recovering from her second cancer surgery and who is extremely allergic to tobacco smoke. Prior to the current tenant moving into 5-C, this problem did not exist on the fifth floor.

To try to remedy the situation, I have sealed my apartment entry door with weather stripping and a draft barrier. I operate two heap air filters round the clock, incurring additional electric charges. Despite these efforts, we can still smell the smoke from 5-C in our apartment.

If you can help in any way to remedy this problem, we would be extremely appreciative. Failing that, we must consider finding a healthier living situation.

Notwithstanding the above, the landlord took no action to curtail their neighbors smoking that was invading the Bryants home. About 30 days later, defendants decided to vacate the subject premises due to the incessant secondhand smoke and wrote a letter to their landlord dated August 1, 2001, notifying him of their decision as follows:

Due to my wifes continuing health concerns and our most recent and apparently ongoing smoking issue with our next door neighbor (please refer to our letter to Frank Baldanza dated June 29) we have found it necessary to look elsewhere for more appropriate living quarters. Please note that we will be vacating this apartment by the end of August, 2001.

The gravamen of plaintiffs motion is that he cannot be held liable for the actions of third parties beyond his control, such as the neighbors in unit 5-C. This argument is misplaced, as the Court of Appeals since 1979 has clearly stated that the acts of third parties are within the scope of a landlords responsibility pursuant to RPL 235-b. The courts have continuously held that the implied warranty of habitability can apply to conditions beyond a landlords control.

While the landlord contends that he had no control over the neighbors in apartment 5-C, he failed to offer any evidence that he took any action to eliminate or alleviate the hazardous condition. The landlord could have asked the board of managers of the condominium to stop the neighbors from smoking in the hallway and elevator, as well as to take preventive care to properly ventilate unit 5-C so that the secondhand smoke did not seep into the Bryants apartment. Specifically, Real Property Law 339-v(1)(i) mandates that condominium by-laws restrict the use and maintenance of both the units and common elements such as the hallways and elevators so as to prevent unreasonable interference with the use of respective units and of the common elements by several unit owners. The board of managers and even the landlord could have commenced an action for damages or injunctive relief for non-compliance with the by-laws and decisions of the board of managers pursuant to the Condominium Act. Moreover, in the case of flagrant or repeated violation by a unit owner, the Condominium Act also authorizes the board of managers to impose sufficient surety to ensure future compliance with their by-laws and decisions. Real Property Law 339-j.

Conclusion

Inasmuch as there are triable issues of fact as to whether the secondhand smoke breached the implied warranty of habitability and caused a constructive eviction, plaintiffs motion to strike and/or dismiss the defendants third and fourth affirmative defenses and first and second counterclaims must be denied.

The foregoing constitutes the decision and order of this court.

Comment: You dont need a crystal ball to predict that it is only a matter of time before apartment dwellers will be suing landlords for injuries allegedly caused by the second hand smoke of other tenants. Insurers had better read their pollution exclusions and make a determination as to whether secondhand smoke claims will fall within or outside of the exclusion.

Poyck v. Bryant (Civil Court, New York County) (Index no. 33752CVN2002)(HAGLER, j)(Decided August 24, 2006)