The Rogak Report: 02 Sept 2006 ** Premises Liability - Secondhand Smoke
- LANDLORD'S FAILURE TO STOP TENANTS FROM SMOKING MIGHT BREACH WARRANTY
OF HABITABILITY -- CAN LIABILITY BE FAR BEHIND?
Poyck v. Bryant (Civil Court, New York County) (Index no.
33752CVN2002)(HAGLER, j)(Decided August 24, 2006)
"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."
"Most urban dwelling in New York City comprises 'vertical living' in
high-rise apartment buildings with possibly multiple neighbors in all
directions. With multiple neighbors living beside each other comes
basic duties and responsibilities. There is a duty to protect each
other's right to privacy and a responsibility not to invade a
neighbor's privacy. The unwanted invasion of privacy comes in many
guises such as noise, smells, odors, fumes, dust, water and even
"The key to avoiding such unneighborly behavior is for the neighbor
to follow the often forgotten 'Golden Rule' - You shall love your
fellow or neighbor as yourself. The Golden Rule is a general
principle of ethics which essentially admonishes neighbors as
follows: What is hateful to you, do not do to your neighbor."
"The landlord also has an obligation to ensure that the conditions do
not render the apartment 'unsafe and uninhabitable' or prevents the
premises from serving their intended function of residential
occupation. When neighbors fail to respect each other and the
landlord does not act, the law imposes its will on landlords and
tenants through the statutory enacted implied warranty of
habitability pursuant to Real Property Law ("RPL") §235-b."
Implied Warranty of Habitability
"In the landmark case of Park West Management Corp. v. Mitchell, 47
NY2d 316 (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. (L. 1975, ch. 597). In
other words, RPL §235-b placed the tenant in parity legally with the
landlord. For more than thirty 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; and,
"third, that the tenants are not subjected to any conditions
endangering or detrimental to their life, health or safety."
Park West Management Corp., 47 NY2d at 326.
"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, 86 NY2d 582, 589 (1995)."
"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. U.S. Surgeon General's report on The
Health Consequences of Involuntary Smoking (December, 1986); New York
Public Health Law §1399-n(1); The Administrative Code of the City of
New York §17-501(1). 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. As such, it
is axiomatic that secondhand smoke can be grounds for a constructive
eviction. See, Barash v. Pennsylvania Terminal Real Estate Corp., 26
NY2d 77 (1970). Cf., East End Temple v. Silverman, 199 AD2d 94 (1st
Dept 1993) (holding that a single occurrence of smoke did not amount
to a substantial deprivation of use and enjoyment of the residential
"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."
"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
"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, New
York. 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."
"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 building's 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 super's efforts failed, defendant Stanley Bryant wrote a
letter dated June 29, 2001 to the super and to plaintiff Peter Poyck
as well as to Poyck's attorney-in-fact, Charles Corso ("Corso")
seeking a solution to the hazardous smoking problem and informing
them that they may consider a 'healthier living situation' as
"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 hepa
air filters round the clock, incurring additional electric charges.
Despite these efforts, we can still smell the smoke from 5-C in our
"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
thirty 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
"Due to my wife's 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 29th) 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."
"In this case, neither party asserted claims against the
condominium's board of managers because the implied warranty of
habitability pursuant to RPL §235-b does not apply to the
relationship between the board of managers of a condominium and an
individual unit owner. Frisch v. Bellmarc Mgmt., Inc., 190 AD2d 383
(1st Dept 1993). However, the defendants as tenants of unit 5-D may
rely on RPL §235-b against the plaintiff, the only landlord in this
"The gravamen of plaintiff's 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 landlord's responsibility pursuant to RPL
§235-b. Parkwest Management Corp., 47 NY2d at 326. The courts have
continuously held that the implied warranty of habitability can apply
to conditions beyond a landlord's control. Elkman v. Southgate Owners
Corp., 233 AD2d 104 (1st Dept 1996) (an alleged noxious odor
emanating from a retail fish store in an adjacent building neither
owned nor controlled by the landlord cooperative corporation may be a
breach of the implied warranty of habitability); Sargent Realty Corp.
v. Vizzini, 101 Misc 2d 763 (Civ Ct NY County 1979) (floods caused by
upstairs tenant on four occasions which landlord allowed to persist
resulted in substantial abatement); Quasha v. Third Colony Corp.,
October 10, 1990, NYLJ, p. 22, col. 2 (Sup Ct NY County) (noise
emanating from neighbor stated a claim for breach of implied warranty
of habitability); Solomon v. Brandy, September 7, 1994, NYLJ, p. 22,
col. 6 (Civ Ct Bronx County) (evicted neighboring tenant who caused
nuisance resulting in lack of water supply to tenant did not
constitute a good faith defense to the implied warranty of
"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.
See, e.g., Board of Managers of Village House v. Frazier, 81 AD2d 760
(1st Dept 1981) affd 55 NY2d 991 (1982). 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."
"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, plaintiff's 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 don't 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.