Landlord v. Tenant: Smoking-Related Cases

Smoking in Tenant's Apartment Wasn't Prohibited by Lease and Didn't Constitute Nuisance

Landlord sued to evict rent-stabilized tenant for creating or permitting a nuisance due to excessive cigarette smoke that flowed into next-door tenant's apartment through gaps in the baseboards, floors, and the apartment front door. The court granted tenant's request to dismiss the case. Tenant had lived in the apartment for 46 years. There was no lease provision or house rule prohibiting smoking in apartments and no proof that tenant smoked in the building's common areas. Tenant's smoking therefore didn't constitute a nuisance.

• Priceman Family LLC v. Kerrigan, May 2018

Notice to Cure Didn't State What Lease Provisions Were Violated

Landlord sued to evict tenant for creating a public nuisance. Landlord claimed that tenant smoked cigarettes inside his apartment and permitted secondhand smoke to enter into neighboring apartments. Landlord claimed that tenant's actions violated his lease. Tenant asked the court to dismiss the case, claiming that landlord didn't specify what lease provision was violated. The court ruled for tenant. Landlord's notice to cure was defective since it failed to accurately state the lease provisions landlord claimed were violated and failed to state its claims against tenant with sufficient specificity.

• Roosevelt Terr. Coop. Inc. v. Lotz, March 2018

Tenant's Smoking Didn't Create a Nuisance

Landlord sued to evict rent-controlled tenant for creating a nuisance. After a trial, the jury ruled for landlord, but the court granted tenant's request to set aside the jury verdict and dismiss the case. Landlord appealed and lost. While trial court evidence showed that tenant smoked in her apartment, there was no house rule or provision in the lease that prohibited such conduct. There also was no proof that tenant smoked in the building's common areas. As a matter of law, tenant's smoking didn't constitute a nuisance, and the court correctly set aside the jury verdict. And, while there was testimony of arguments between tenant and other residents, these were isolated incidents that didn't rise to the level of nuisance.

• Jovic v. Blue, August 2017

Insufficient Proof of Secondhand Smoke

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Tenant claimed breach of the warranty of habitability based on secondhand smoke coming from the upstairs apartment. The court ruled against tenant after a trial. Presence of secondhand smoke can be grounds for a claim of breach of the warranty of habitability or constructive eviction. But here the proof was insufficient. The upstairs neighbor testified that she smoked one or two cigarettes per day in her apartment. Tenant testified that he smelled smoke six or seven days per month. Tenant’s expert stated that on one occasion he smelled no smoke in tenant’s apartment. But he couldn’t confirm whether tenant’s symptoms were from secondhand smoke or even whether any secondhand smoke had infiltrated the apartment. There were inexpensive tests available that could have determined whether secondhand smoke had entered the apartment, but tenant declined to pay for that testing. Otherwise, landlord took reasonable steps to investigate tenant’s claim and the upstairs neighbor took steps to reduce smoke infiltration.

• 555-565 Associates, LLC v. Kearsley, July 2018

Landlord Claims Tenant’s Smoking at Window Created Nuisance

Landlord sued to evict rent-stabilized tenant for creating a nuisance. Landlord claimed that tenant smoked cigarettes daily at her apartment window, which interfered with the comfort of other tenants. The court denied tenant’s request to conduct pre-trial questioning of landlord since tenant failed to show ample need for discovery. Otherwise, whether tenant’s actions constituted a nuisance was an issue for trial. Some amount of dirt, smoke, and odors was part of city life, but whether tenant acted reasonably was a question of fact. It was also unclear whether tenant’s lease forbids smoking or offensive odors.

• P&T Management Co., LLC v. Aponte, September 2015