A landlord’s failure to resolve a tenant’s complaints of cigarette smoke emanating from the apartment below justified a rent abatement and dismissal of the landlord’sattempt to recoup the remainder of the unpaid lease, ruled a Nassau County, New YorkDistrict Court judge.

However, he rejected the tenant’s counterclaims for reimbursement of paid rent and “thousands” for property damage, which included vintage clothing she planned to sell on eBay. The tenant, claiming she was fed up with the second-hand smoke wafting into herapartment, did not pay rent in January and February 2009 and moved out in early February with about four months left on her lease. In response, the landlord sued for approximately $12,000 in unpaid rent.

Landlords of such dwellings have a corresponding duty to prevent one tenant’s habits from materially interfering with another tenant’s right to quiet enjoyment. When a tenant’s smoking results in an intrusion of second-hand smoke into another tenant’s apartment, and that tenant complains repeatedly, the landlord runs a financial risk if it fails to take appropriate action,” he said.

The judge citeda 2006 New York County Civil Court case, Poyck v. Bryant, in observing that second-hand smoke comes under the protections ofthe warranty of habitability statute, New York Real Property Law §235-b. Referencing that case, the judge said the central, fact-dependent issue was whether the smoke was “so pervasive as to actually breach the implied warranty of habitability and/or cause a constructive eviction.” The efforts made by the landlord of caulking and sealing vents, “were too little, too late, or included unacceptable conditions.

By reason thereof, plaintiff (landlord) lost the right to pursue a claim for rent that accrued after the defendant’s (tenant’s) departure.” Landlords who rent property in the City of Rochester, New York must disclose in writing the details oftheir smoking policy – whether tenants are allowed to smoke, prohibited from doing so altogether, or allowed to smoke only in designated areas.

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