FAQ Check: Secondhand Smoke

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Q. What is secondhand smoke?

A. Secondhand smoke, also called environmental tobacco smoke (ETS) and passive smoking, is the breathing in of smoke from other people's cigarettes, cigars or pipes. It's health risks, including for cancer, heart disease, infections, asthma and, for pregnant women, low birth weight and other problems, are a matter of scientific consensus.

Q. What do the courts think of secondhand smoke?

A. While secondhand tobacco odors have long been viewed as a nuisance, the courts now treat it as a health hazard that may be regulated.

In the landmark New York Case case Park West Management Corp. v. Mitchell (1979) -— which requires that a landlord have a premises fit for human habitation and the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety -— the court said secondhand smoke was as insidious and invasive as noxious odors, smoke odors, chemical fumes, excessive noise, water leaks and extreme dust penetration. Therefore, the court held, under the proper circumstances, secondhand smoke qualified as a condition that invoked the protections of Real Property Law (RPL) Section 235-b, which involves the warrant of habitability. As such, the court held that secondhand smoke could be grounds for eviction.

Q. What do I do if a neighbor's secondhand smoke continually enters my apartment?

A. The first step is to be neighborly and to speak with your neighbor about it -— he or she might not even be aware of the seepage, and might agree to seal up cracks and install a ventilation unit that absorbs the smoke. If being neighborly doesn't work, step two is to alert your super, and have him or her explain the issue to the neighbor.

If that still doesn't work, begin preparing a good defense for when the issue, as is likely at this point, will end up before the board, the building manager or the courts. This means showing that you've made a good-faith effort to remedy the problem yourself by sealing your apartment entry door with weather-stripping and a draft barrier, and having your super seal up cracks and evening things like the insides of electrical outlets to help keep out smoke.

Some secondhand-smoke sufferers go so far as to buy and operate one or two HEPA air filters, though you shouldn't have to absorb the cost and the additional electrical expense for someone else's intrusive behavior. Plus, the filters themselves need to be cleaned thoroughly and regularly lest they develop mold.

Q. Smoke still seeps in and the neighbor still refuses to stop. What now?

A. Write a letter to your board. Depending on whether you live in a co-op or a condo, different areas of the law apply.

Q. What is the law if I live in a co-op?

A. Real Property Law (RPL) Section 235-b, which involves the warrant of habitability, covers all tenants and landlords — a situation that does apply to co-ops, where shareholders live under a proprietary lease. Here, the acts of third parties — in this case, your neighbors — are within the scope of a co-op board's responsibility. The board has an obligation to ensure that conditions do not render the apartment "unsafe and uninhabitable" or prevent the premises from serving their intended function of residential occupation. When neighbors fail to respect each other and the board does not act, the law imposes its will on both. Indeed, the decision in the case Poyck v. Bryant held that secondhand smoke could be grounds for eviction.

Q. What if I live in a condo?

A. Under a different law, condo boards can likewise stop the neighbors from smoking in the hallway and elevator, refrain them from secondhand smoke seep into other apartment apartment. Real Property Law Section 339-v(1)(i) mandates that condominium bylaws restrict the use and maintenance of units and common areas alike so as to "prevent unreasonable interference with the use of respective units and of the common elements by several unit owners."

The board of managers could begin an action for damages or injunctive relief for noncompliance with the bylaws and decisions of the board. Moreover, in the case of "flagrant or repeated violation" by a unit-owner, the Condominium Act (Real Property Law Section 339-j) also authorizes the board to impose appropriate measures to ensure compliance.

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