Attorney Tip: Stop the Spread of Smoke Now

Earlier this year, state Supreme Court Judge Arthur Engoron awarded a co-op shareholder named Susan Reinhard the staggering sum of $120,000 in back maintenance, plus interest and attorney’s fees. Reinhard claimed in a lawsuit that the co-op board at Connaught Tower at 300 E. 54th Street did nothing to prevent second-hand smoke from wafting into her apartment, and thus failed to comply with the proprietary lease.

In affirming an earlier opinion in the case delivered in 2011, Judge Engoron delivered the stinging penalty to the co-op. He stated in his opinion:

“Today's decision may, at first blush, seem unduly harsh on building owners, as it imposes legal, logistical, and financial burdens on them. They must either provide smoke-free apartments...by excluding smokers from their buildings, which might decrease (or might increase) the rents they could charge; or must smoke-proof their buildings, which, judging by the testimony of defendants' expert, could be mind-bogglingly expensive; or must completely forego rent payments.”

This decision did not contain much in the way of facts, which has created a great deal of additional concern. However, the fact that the board failed to take any action to address Reinhard’s complaints explains why Judge Engoron was so angry. In any event, until his decision is reversed on appeal, the law in Manhattan and the Bronx is clear: co-op boards have to make apartments smoke-free.

However, the decision does not indicate how the board or management can accomplish such a herculean task in both pre-war and post-war buildings. I do not think it is possible to stop smoke from entering other apartments or the hallways, so the board needs a powerful tool to stop smokers from creating a problem that the board cannot solve. My solution is for every board to enact a resolution stating that “a resident permitting cigarette, cigar, pipe or marijuana smoke from leaving the resident’s apartment and entering a common hallway or another apartment is objectionable conduct and the board will seek to terminate the proprietary lease of any shareholder permitting such smoke from leaving their apartment.”

I have found over the years that sending the predicate notice in situations where neighbors are creating nuisances or disturbing other residents is an excellent way to curtail such behavior. In most instances, the notice seems to get the message across. Enacting the resolution will not stop the smoke, but it will make the smoker reconsider where they smoke and how they can keep the smoke within their apartment.

Although the decision does not apply to condominiums, I can see a judge applying the same theory, so my suggestion is that condominium boards enact resolutions that provide that “a resident permitting cigarette, cigar, pipe or marijuana smoke from leaving a unit and entering a common element or another unit is a nuisance and the board will seek a court order, at the smoker’s expense, to enjoin the unit owner from permitting such smoke from leaving their unit.”

Stuart Saft is a partner in the law firm Holland & Knight.