LANDLORDS AND SECONDHAND SMOKE COMPLAINTS:
THE APPELLATE DIVISION CLEARS THE AIR
By Joseph Rapice and Arthur P. Xanthos
This Firm recently won a successful appeal
concerning whether a co-op has an obligation to guarantee an odor free
apartment for a shareholder. The appellate
decision, Reinhard v. Connaught Tower
Corporation, is available on this website under Publications.
Shareholder-tenant Susan Reinhard sued her
co-op, the Connaught Tower Corporation, alleging that a cigarette smoke odor
condition rendered her apartment uninhabitable for nine years, thereby forcing
her to live in another premises. Prior
to trial, plaintiff had made a settlement demand of $600,000.00, essentially
making settlement impossible and forcing a trial.
At a three-day non-jury trial, plaintiff testified
that she, her family, and a close family friend smelled cigarette smoke in the
apartment on a handful of occasions over a nine year period, although the
source of the odor was never identified. Plaintiff also proffered the testimony
of an expert industrial hygienist, who testified that air passageways existed
behind the walls in plaintiff’s apartment, implying that offensive odors could
have been entering the apartment via those passageways. The industrial hygienist also testified that
he too smelled a smoke odor in the apartment during his inspections.
In defense, we noted at trial that
plaintiff’s expert, although he could have done so, failed to do a nicotine
test. We pointed out as well via cross-examination that such tests
are inexpensive and easy to do. We further
demonstrated that without such objective testing and data, plaintiff could show
no threshold amounts of any toxin (i.e.,
secondhand smoke) in the apartment. Essentially, we proved that the only objective
evidence presented by plaintiff was that yielded by her nose – she smelled
something she did not like.
At trial we also introduced other critical
facts: plaintiff was a full time resident of Connecticut, never actually
inhabited her apartment, and instead desired to use the apartment as a Manhattan
pied a terre.
Despite these facts, the trial court ruled
that the co-op had breached the proprietary lease and the statutory warranty of
habitability, thereby constructively evicting Plaintiff. The trial court awarded plaintiff a full return
of nine years of maintenance payments in an amount of $120,000.00, and an award
of attorneys fees. In so ruling, the
trial court found that “significant cigarette smoke permeates and pollutes the
apartment,” that the apartment was “infiltrated by secondhand smoke”, and that
the apartment was “smoke-polluted.” We appealed that decision.
On May 4, 2017, the Appellate Division First
Department unanimously reversed the trial court’s decision, dismissed
plaintiff’s complaint in its entirety, and awarded attorneys’ fees to our
client – the co-op. The appellate court
held that the evidence failed to show that the subjective odor of cigarettes on
a few occasions over nine years rendered plaintiff’s apartment uninhabitable. Critically, the appellate court reasoned that
plaintiff failed to show that the alleged odor was present on a consistent
basis and that it was sufficiently pervasive as to affect the health and safety
of the occupants. (The Court also noted that plaintiff lived in Connecticut and
only intended to stay in the apartment occasionally.)
The Reinhard
decision marks a significant victory for building owners, cooperatives, and
condominium boards, as well as for their insurers. The trial court’s ruling
had temporarily opened a Pandora’s Box with regard to habitability claims, as it
seemed to imply that a tenant need only claim a subjective odor to recover a full
rent abatement. (Indeed, this Firm had seen an uptick in smoke
odor cases following that decision.) The Appellate Division First
Department’s decision, however, reaffirmed two rules: (i) that a plaintiff-tenant
must present objective evidence of the presence of a toxin, a threshold level
of it, and proof of a causal connection to health and safety of an occupant;
and (ii) that a claim based upon the habitability of an apartment dwelling
requires proof that the plaintiff occupied the dwelling.
-5/9/17
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