A New York appeals court has reversed a trial-court decision holding a Cooperative liable for second-hand smoke that seeped into a tenant-shareholder’s apartment. Reinhard v. Connaught Tower Corp., 2017 N.Y. App. Div. LEXIS 3555, 2017 N.Y. Slip Op. 03618  (1st Dep’t May 4, 2017).

The tenant-shareholder filed a lawsuit alleging that shortly after she purchased and renovated her unit (as a second residence), she began smelling cigarette smoke there, and that the Cooperative failed to take action despite a series of complaints. The trial court took judicial notice of the scientific evidence that second-hand smoke causes or contributes to cancer and other health risks, and held in the tenant-shareholder’s favor on her claims for breach of the warranty of habitability, breach of the proprietary lease, and constructive eviction.  The remedies awarded by the trial court included an abatement of the entire maintenance payable by the tenant-shareholder beginning from the date of her first complaint.  (For further discussion of the lower court’s decision, please see the April 2016 issue of this Client Advisory.)

On appeal, the appeals court found that the trial court’s decision “was not based on a fair interpretation of the evidence” because “[t]he evidence failed to show that the odor of cigarettes rendered plaintiff’s apartment uninhabitable, breached the proprietary lease, or caused plaintiff to be constructively evicted. In particular, plaintiff’s evidence failed to show that the odor was present on a consistent basis and that it was sufficiently pervasive as to materially affect the health and safety of occupants.”  The tenant-shareholder’s evidence was deficient because plaintiff’s witnesses merely “smelled smoke in the apartment on a handful of occasions over the years, and the source of the smoke was never identified.  Moreover, plaintiff lived in Connecticut, near her workplace, and only intended to stay in the apartment occasionally.”

This appellate decision is significant because it reverses a trial-court decision that, if broadly followed, could have rendered cooperatives and landlords liable virtually automatically based on virtually any complaint of second-hand smoke infiltration. However, it is important to note that the appeals court simply held that this Cooperative was not liable on the specific facts established before it.  The decision does not negate the possibility that another Cooperative or landlord might be held liable where a resident is able to establish the “consistent” and “pervasive” presence of second-hand smoke in his or her apartment.  The decision also does not affect the ability of a Cooperative to voluntarily adopt a no-smoking policy consistent with its governing documents – which generally require a two-thirds affirmative vote of all outstanding shares – should it wish to do so.