The Question of Smoking in Co-ops and Condos

By Stephen J. Budihas

With the availability of incontrovertible proof as to the cause and effect of smoking on one’s health; and further on the impact of second-hand smoke, there will probably always be a conflict between those who smoke in the privacy of their own apartments and others to whom smoke seeping through walls, ventilation shafts and miscellaneous cracks and crevices provides a genuine nuisance at the very least and a serious health concern at worst.

In New York City, the Smoke-Free Air Act of 2002 provides the following guidance:

·      “Smoking is prohibited in the common indoor areas of buildings with 10 or more dwelling units.

·      Common indoor areas of multiple dwelling units include hallways, stairwells, lobbies, laundry rooms, and other work areas of the building used by the tenants or by the maintenance and building personnel.

·      “No smoking” signs or the international symbol for “no smoking” must be displayed in all common indoor areas of the building.

·      Owners of residential buildings are responsible for all violations reported concerning the Smoke Free Air Act and may incur penalties if they fail to comply with the law.

·      Smoking is not prohibited in apartments and other private residences except in areas where child day care centers or health care facilities are being operated, are open, or employees are working.”

Further, states,

“There is no law that specifically prohibits a neighbor from smoking in his or her home. . . . . However, some owners do prohibit smoking in residences, in which case smoking indoors could be a violation of a lease or rental agreement.”

Thanks to the expert summations provided by the ARC General Counsel, Marc Luxemburg, Esq., we can provide the following information from a number of recent court rulings so that you may better appreciate the issues involved, the diversity of the legal opinions and so that you can make an informed judgement about smokers’ rights and the rights of those impacted by individual smoking, especially including building corporations.

The most oft-quoted and precedential case is  Ewen v Maccherone, (2009), reversed, Supreme Court Appellate Term, May 26, 2011 – Plaintiffs commenced the instant action to recover damages for negligence and private nuisance against defendants, alleging that secondhand smoke from defendants’ “excessive smoking” “seeped in” through the walls into plaintiffs’ apartment, which condition was “exacerbated” by a building-wide ventilation or “odor migration” construction design problem.

In fact, the complaint expressly stated that “while a smoking neighbor may be a mere annoyance under normal circumstances, due to the odor migration problem, secondhand smoke fills [plaintiffs’] kitchen, bedroom and living room, causing them to vacate their unit often at night” and resulting in personal injuries.

“Not every intrusion will constitute a nuisance. ‘Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other . . . If one lives in the city he [or she] must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life’ ” (Nussbaum v Lacopo, quoting Campbell v Seaman, 1876). And, defendants’ conduct in smoking in the privacy oftheir own apartment was not so unreasonable in the circumstances presented as to justify the imposition of tort liability against them

To the extent odors emanating from a smoker’s apartment may generally be considered annoying and uncomfortable to reasonable or ordinary persons, they are but one of the annoyances one must endure in a multiple dwelling building (see also:Matter of Levandusky v One Fifth Ave. Apt. Corp., 1990; and Poyck v Bryant,2006), especially one which does not prohibit smoking building-wide.

Defendants did not have a duty to refrain from smoking inside their apartment or to avoid exposing their neighbor to secondhand smoke that unintentionally seeped into the neighbor’s apartment, [and so] plaintiffs’ negligence claim must fail.