Latest Hot Co-op Topic: Secondhand Smoke

Benjamin Zitomer lived happily with his family in a two-bedroom apartment at 99 Jane St. in the West Village for six years before a new tenant moved in next door and brought an unexpected menace: It wasn't rats or cockroaches or even noise; it was secondhand smoke.

"It came in through the bedroom wall and permeated in through the front door," Mr. Zitomer, 49, a database administrator, said. "Our apartment was filled with smoke almost every night. We had to have the windows open in the middle of the winter."

Secondhand smoke is overtaking noise as one of the most common complaints coming before condo and co-op boards. While the issue isn't new, real estate lawyers say that with New Yorkers prohibited from smoking at work, in bars and restaurants, and even directly in front of buildings, the battle against secondhand smoke is increasingly taking place at home.

"This is the hot controversy in condos and co-ops right now," a real estate lawyer who gets a new smoking-related case about once a month, Aaron Shmulewitz, said. He added that with more science confirming the dangers of secondhand smoke and fewer people picking up the smoking habit, homeowners are more sensitive to the problem.

"We were really upset and frustrated," Mr. Zitomer said of his experience. "We couldn't go out to escape it. My son had to go to sleep just as it started up at night, and it lasted until 4 or 5 a.m. This guy was something of a night owl."

The president of the board at 99 Jane St., Salvatore Rasa, declined to comment. He said secondhand smoke "is an issue we are all learning about."

For Mr. Zitomer, the problem wasn't so much the initial assault of the smoke on him, his wife, and his 3-year old son as it was his lack of legal recourse.

All told, it took him 10 months to resolve the issue — the condo board eventually rejected the smoker's request to renew his lease when it came up in August — but it could have dragged on for years.

The issue of secondhand smoke represents murky legal territory for lawyers, with little case law on which to base a claim. Essentially, condo and co-op boards must make a reasonable effort to determine the source of the smoke and attempt to mitigate the effects. If they fail to do that, homeowners and tenants can refuse to pay maintenance fees or rent, Mr. Shmulewitz said.

"A board that ignores complaints like this is acting at its own peril," he said.

There are several difficulties for building boards. Namely, secondhand smoke is subjective, with some people sensitive even to the suggestion of smoke, while others are not bothered unless it is happening directly in front of them.

"Another interesting question comes down to payment," a partner at Stroock & Stroock & Lavan who is the chairwoman of the New York City Bar Association's Committee on Cooperative and Condominium Law, Eva Talel, said. "Does the smoker pay to fix the problem or the tenant or the board? Or do they share the cost?"

A real estate developer and former general contractor, Eitan Baron, said it would cost $2,000 to $2,500 to block up seepages in sockets, floors, and windows with fireproof foam and other airtight material that would prevent smoke from coming into an apartment. He suggests that both a smoker's apartment and the nearby units be fixed up with these protections.

Another possibility is to ban smoking altogether in a building, but that, too, presents difficulty. To do this, at least two-thirds of the shareholders would have to vote through a proprietary lease amendment.

A 20-unit cooperative in Hell's Kitchen at 341 W. 54th St. reportedly rejects applicants who list themselves as smokers. The president of the board could not be reached for comment.

"Shareholders are talking about this at several buildings," Ms. Talel said.

There is one case that may provide a benchmark for other lawsuits based on secondhand smoking. In Poyck v. Bryant, Judge Shlomo Hagler ruled in August 2006 that a tenant who stopped paying rent because the landlord wouldn't address a secondhand smoke issue did not have to pay the more than $10,000 the landlord claimed he owed.

Drawing on health research from the surgeon general, the judge ruled that the landlord's inaction breached the warranty of habitability.
Mr. Shmulewitz said he is expecting an onslaught of cases to be filed with similar claims in the coming years.

"The conditions that are conducive to second hand smoke, like improperly constructed buildings, are going to increase," he said. "As it is difficult to resolve these complaints, there will be more and more lawsuits."

Correction from January 21, 2008: A cooperative's board of directors may amend house rules to prohibit smoking in the building. The type of building was incorrectly identified in an article on page 1 of the December 6 Sun.