Tenant Can't Prove Harassment by Landlord Where Some Tenants Were Permitted to Smoke

Tenant sued landlord in an HP proceeding, claiming that landlord had harassed her in violation of NYC Admin. Code Section 27-2005(d) by intending to cause her to move out. Tenant was 86 years old, suffered from COPD, and claimed that landlord retaliated against her because she requested "breathable air" in her apartment. She said there was secondhand smoke coming into her unit several times a day in violation of the building's no-smoking policy.

The court ruled against tenant and dismissed the case, without prejudice, finding tenant failed to show that landlord acted in a way that caused her to surrender her occupancy rights. Landlord had offered to provide an air quality tester and send building staff to inspect concerning her complaints. And, while the building had a no-smoking policy, there were some tenants who were allowed to smoke (presumably since no-smoking policies could not be applied against rent-regulated tenants whose leases were in effect before a no-smoking policy became effective).

D'Agostino v. Gateway Residential AAF Marina Towers Assoc. v. HPD: Index No. HP06821/21, 2023 NY Slip Op 50092(U), NYLJ No. 1676639673 (Civ. Ct. NY; 1/31/23; Ortiz, J)