A New York court has considered whether a tenant could terminate her lease when her landlord failed to remedy, after numerous complaints, second-hand smoke coming from another tenant’s apartment into her apartment.
Danielle Cannon (“Tenant”) leased an apartment from Upper East Lease Associates, LLC (“Landlord”) commencing on May 7, 2008 and ending on May 31, 2009. The lease contained an addendum in which tenants agreed to prevent second-hand smoke from entering the common areas and other apartments.
In September 2008, a new resident occupied the apartment below the Tenant’s apartment and this lease also included the Addendum. This new resident was a smoker and also had a guest that was a smoker. This caused second smoke to enter the Tenant’s apartment, and so the Tenant complained to the Landlord about the second-hand smoke starting in October 2008.
Despite the Tenant’s complaints, the second-hand smoke continued. The Landlord took measures to try and keep the smoke out of the Tenant’s apartment such as caulking the door and vents, but this did not stop the problem.
The Tenant requested another apartment in November 2008. The Landlord offered to transfer her to another apartment, but only if she would agree to a year rental term. The parties could not agree on the terms of the transfer, and the Tenant eventually refused to pay her January and February rent because the second-hand smoke problem continued. On February 4th, she vacated her apartment.
The Landlord brought a lawsuit against the Tenant for the unpaid rent, claiming that she had breached her lease. The Tenant counterclaimed, alleging that the Landlord had breached the warranty of habitability by allowing the second hand smoke to penetrate her apartment, causing a constructive eviction. The trial court conducted a bench trial.
The New York District Court, Nassau County, ruled in favor of the Tenant and awarded her damages equaling the amount of unpaid rent. First, the court stated that the both the lease provisions and the warranty of habitability governed the rights of the parties. The warranty of habitability requires a landlord to prevent one tenant from unreasonably interfering with the rights of another tenant. The lease gave the Landlord the power to take action against the smoking tenant, since the lease prohibited tenants from causing second-hand smoke to travel outside of their apartments.
Under New York law, second-hand smoke constitutes a nuisance when the second-hand smoke is more than a single occurrence, but instead is a pervasive problem. Failure to remedy a nuisance will constitute a constructive eviction.
The court ruled that the second-hand smoke in this case constituted a nuisance and the Landlords failure to abate a known nuisance resulted in a breach of the warranty of habitability, resulting in a constructive eviction of the Tenant. The court found that the Landlord had failed to meet its obligations by not preventing the second-hand smoke intrusion after numerous complaints.
Based on the breach of its duties, the court ruled that the Landlord could not collect damages for any unpaid rent after the Tenant vacated her apartment. In addition, the court award the Tenant damages that escalated as time went on without the Landlord’s cure of the problem. The amounts awarded to the Tenant equaled the unpaid rent amounts, and so neither party owed the other anything at the conclusion of the trial.
Upper East Lease Assoc., LLC v. Cannon, No. 44409/09, 2011 WL 182091 (N.Y. Dist. Ct. Jan. 20, 2011). ). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].