Preliminary Injunction Against Smoker Denied

Landlord sued two tenants and asked the court to declare the rights of the parties.  Tenant A complained that Tenant B, on the floor below her, smoked cigarettes in Tenant B's apartment, and that the smoke permeated Tenant A's apartment. Landlord had received multiple complaints from Tenant A since the COVID-19 pandemic forced many tenants to remain at home, and landlord had issued a COVID-19 building-wide  policy that prohibited smoking in apartments or in common areas. Tenants A and B each had refused to permit landlord's inspection of their units, although the building super confirmed that there was a smoke smell outside Tenant A's apartment. Tenant B claimed that landlord's request for her to stop smoking constituted harassment, and that her smoking didn't bother anyone. A neighbor from an adjoining building also complained of the smoke smell from landlord's building. At the outset of the case in April 2020, the court granted landlord's request for a temporary injunction (TRO) and ordered Tenant B to stop smoking in her apartment until further court action.

But, a month later, the court denied landlord's request for a preliminary injunction against Tenant B. Landlord claimed that Tenant B was creating a nuisance but failed to submit sufficient proof that it was likely to succeed on this claim. At this point in the case, landlord couldn't show that the smoke was so pervasive or unreasonable that it merited the issuing of injunctive relief. Landlord also didn't show that the smoke came from Tenant B's apartment. Tenant A also didn't submit any sworn statement as to how she knew that Tenant B caused the smoke in her apartment. Tenant B was a rent-stabilized tenant, who was permitted to smoke in her apartment since her long-term lease didn't prohibit smoking. Smoking in one's apartment, on its own, didn't necessarily establish nuisance. Clearly, landlord had no choice but to commence the court action, but at this point the lack of evidence prevented the court from imposing a preliminary injunction against Tenant B.

J & P Realty, LLC v. Schevill: Index No. 651811/2020 (Sup. Ct. NY; 5/14/20; Bluth, J) [8-pg. doc.]