Insufficient Proof of Second-Hand Smoke

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Tenant claimed breach of the warranty of habitability based on second-hand smoke coming from the upstairs apartment. The court ruled against tenant after a trial. Presence of second-hand 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 second-hand smoke or even whether any second-hand smoke had infiltrated the apartment. There were inexpensive tests available that could have determined whether second-hand 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: 48 Misc.3d 1211(A), 2015 NY Slip Op 51093(U) (Civ. Ct. NY; 7/17/15; Kraus, J)