Cigarette Smoke Odor from Tenant's Apartment Not Proved Hazardous

Landlord, the shareholder and proprietary lessee of a cooperative apartment, sued to evict tenant for violating the building's house rules. Landlord claimed that tenant unreasonably allowed cigarette smoke to escape into and permeate through the public hallway outside the apartment. Landlord claimed that other tenants had complained and that tenant had ignored requests to cure this condition. Tenant denied any wrongdoing, and claimed that landlord and the co-op board were hostile toward her and intentionally inflicted emotional distress.

The court ruled against landlord after trial. Testimony showed that, while there may have been an occasional odor in the public hallway, landlord failed to prove that the odor was so offensive as to interfere with the rights, comfort, or convenience of other tenants. Landlord presented no evidence from an expert to prove that the air content or the odor was dangerous or hazardous. And only tenant's next-door neighbors complained. There were no complaints from upstairs or downstairs neighbors despite the vertical ventilation shafts in the building. The neighbor who testified couldn't state how many times he smelled "even a faint smell of smoke" in the hallway in 2013 and 2014. And his wife's testimony that the cigarette smoke offended her was insufficient for a finding of lease violation. Another building resident and former co-op board member also testified that she didn't smell cigarette smoke in the hallway. 

201 W 89th Owners, Inc. v. Mostel: 46 Misc.3d 1201(A), 2014 NY Slip Op 51756(U) (Civ. Ct. NY; 12/2/14; Wendt, J)