Some of the most intense combat occurring in modern times is not that which has  taken place on battlefields, such as at Normandy, Pork Chop Hill, or in the la  Drang Valley, or currently in the mountains of Afghanistan, but rather in the  ongoing conflicts that occur between shareholders, owners, and renters of  apartments in multiple dwelling buildings, between themselves and/or with their  respective cooperative boards of directors, landlords, or condominium boards of  managers, over the infiltration of secondhand cigarette smoke into personal  living spaces.  

 However, like most wars, steps could have been taken to prevent the smoke and  noise disputes that have occurred; steps that could have won the war without  firing a shot. This article will discuss the current state of the law regarding  secondhand smoke infiltration and how condominium and cooperative boards and  landlords should attempt to deal with smoking issues in the future.  

 The law is still being developed respecting secondhand smoke. At present, there  are very few reported cases, but given the amount of poor new and renovated  construction that occurred over the past decade, it is likely there will be a  significant increase of litigation over smoke issues in the near future. It  should be noted, however, that the law applied to cooperative corporations and  rental landlords differs in some respects from the law applied to condominiums.  

 There is no clear answer to the question of how much smoke infiltrating into a  neighboring apartment will trigger potential liability. It is generally agreed,  however, that “proof of a ‘single occurrence’ plainly will not suffice” and that the answer in each case is “necessarily fact sensitive.”  

 Boards and Landlords Have an Obligation

 Cooperatives and Rental Buildings: Cooperative Boards and landlords are subject  to the statutory implied Warranty of Habitability contained in RPL 235-b(1)  which governs all rental leases and all cooperative proprietary leases: In  every written or oral lease or rental agreement for residential purposes the  landlord or lessor shall be deemed to covenant and warrant that the premises so  leased or rented … other tenants or residents are fit for human habitation … the occupants of such premises shall not be subjected to any conditions which  would be dangerous, hazardous or detrimental to their life, health or safety.  

 Residential cooperative corporations and landlords of rental buildings are fully  subject to the requirements of RPL 235-b and must protect their shareholders  and tenants against any condition that unreasonably interferes with the ability  of the shareholders and tenants to use their apartments for their intended  residential purposes.  

 The cases of Poyck v. Bryant and Reinhard v. Connaught Tower Corporation have  held that a landlord and a cooperative corporation (as landlord) can be held  liable for breach of the RPL 235-b implied warranty of habitability, which  applies to both ordinary rental leases and cooperative leases, for not  preventing conditions that allow secondhand smoke to infiltrate from a common  area and/or from a smoker resident’s apartment to a neighboring resident’s apartment. However, at present, there are no appellate rulings holding secondhand tobacco  smoke subject to the RPL 235-b implied warranty of habitability.  

 Condominiums: Not being subject to the warranty of habitability requirement of  RPL 235-b, the condominium board’s obligation is based on RPL 339-v(b)(i) which requires all condominium bylaws  to include:  

 Such restrictions on and requirements respecting the use and maintenance of the  units and the use of the common elements, not set forth in the declaration, as  are designed to prevent unreasonable interference with the use of their  respective units and of the common elements by the several unit owners.  (Emphasis added).  

 As stated in Ewen v. Maccherone the only appellate court that has ruled on  secondhand smoke issues:  

 In this regard, the board of managers of the subject condominium is specifically  authorized to make determinations regarding the operation, care, upkeep, and  maintenance of the common elements in the building, and to enforce any bylaws  and rules among unit owners, including the rule prohibiting one resident from  interfering with the rights, comforts or conveniences of other unit owners.  

 Condominium boards, like cooperative boards, “must act for the benefit of the residents collectively,” and they likewise have a fiduciary duty to enforce, in a non-discriminatory  fashion, their bylaws and rules among unit owners. To the extent, therefore,  that a condominium board fails to enforce a bylaw prohibiting or restricting  smoking, and thereby subjects the condominium to possible suit and recovery of  damages by aggrieved unit owners, the board is acting contrary to the  collective interests of all residents in breach of its fiduciary duty.  

 Using Tools to Regulate Smoking

 Cooperative proprietary leases and rental leases generally provide that  shareholder-tenants and rental tenants are obliged to comply with all laws  affecting the occupancy and use of the property. Accordingly, cooperative  boards and landlords may enforce smoking restrictions by reference to the New  York City Air Pollution Control Code which, by virtue of such lease and bylaw  provisions, is necessarily incorporated into their leases and bylaws.  

 Under New York City’s Administrative Code, Title 24, Chapter 1 (Air Pollution Control), Sub-Chapter  6, §24-141, provides as follows:  

 No person shall cause or permit the emission of air contaminant, including  odorous air contaminant, or water vapor if the air contaminant or water vapor  causes or may cause detriment to the health, safety, welfare or comfort of any  person, or injury to plant and animal life.  

 This code provision expressly provides that “the prohibition of this section includes . . . contaminants” derived from “coal tar products manufacture,” the kind of contaminants that are typically found within secondhand cigarette  smoke. Such laws should provide enough ammunition to seek a court’s intervention to regulate a smoking problem between residents. For  cooperatives, in extreme cases, the business judgment rule permits an offending  shareholder’s cooperative tenancy to be terminated, if the proprietary lease contains a  provision authorizing such termination (known as a “Pullman” clause), and if the termination is based on a board or shareholder’s vote terminating the lease as a result of the shareholder-tenant’s objectionable conduct and done in accordance with the procedures specified in  the corporate documents.  

 A condominium’s authority to act on smoking problems derives from RPL 339-j (of the  Condominium Act) which requires each unit owner to “comply strictly with the bylaws and with the rules, regulations, and resolutions  adopted pursuant thereto,” and which empowers the condominium board to sue an offending unit owner for  damages or injunctive relief, or both, or “in any case of flagrant or repeated violation by a unit owner,” to require the offending unit owner to “give sufficient surety or sureties for his future compliance with the bylaws,  rules, regulations, resolutions and decisions.” Condominium bylaws also generally require that unit owners comply with all  laws, regulations, zoning ordinances, and requirements of any governmental  agency relating to any portion of the property. Therefore, condominium boards  may also take action against smoking based on the New York City Air Pollution  Control Code, without amendment of their bylaws, by levying a fine and  foreclosing on a lien on the fine, if the bylaws otherwise permit.  

 However, while cooperatives may pursue a fairly quick eviction proceeding,  condominiums must sue in State Supreme Court for injunctive relief and damages  or foreclosure. As a result of the cost of litigation and the lack of any  eviction-type leverage, such proceedings by condominiums can extend for several  years without a satisfactory result.   

 Adam Leitman Bailey is the founding partner of Adam Leitman Bailey, P.C. John M.  Desiderio, the chair of the firm’s Real Estate Litigation Group, contributed to this article. Stephanie Rothman,  a firm intern, contributed to the preparation of this article.