No Rent Abatement for Second-Hand Smoke Claim

Landlord sued to evict rent-stabilized tenant for nonpayment of rent. Tenant claimed breach of the warranty of habitability because smoke seeped into his apartment from his neighbor’s smoking and he was allergic to the smoke. Tenant claimed that he hadn’t slept in the apartment since December 2013, which the court didn’t believe. Experts for both sides agreed there were no safe levels of exposure to second-hand smoke. But landlord took many steps to investigate, and the neighbor took steps to reduce any alleged infiltration. The neighbor testified that she was only an occasional smoker. The court denied tenant’s request for a rent abatement, finding his testimony regarding the amount of smoke in his apartment unreliable. His symptoms were an allergic reaction, but both experts acknowledged that cigarette smoke could be one of thousands of allergens tenant was reacting to.

555-565 Assoc., LLC v. Kearsley: Index No. L&T 88254/2014, NYLJ No. 1202734307252 (Civ. Ct. NY; 7/17/15; Kraus, J)