Scott E. Mollen
Scott E. Mollen ()

Co-Ops—Judgment Against a Co-Op Board Based on Second Hand Smoke Reversed by the Appellate Division—Source of Smoke Never Identified—Plaintiff Only Stayed in Apartment Occasionally—Warranty of Habitability—Constructive Eviction

Following a nonjury trial, a trial court found a defendant cooperative corporation (co-op) was “liable and awarded plaintiff certain maintenance payments, interest, and reasonable attorney fees,” in a case involving second-hand smoke. The Appellate Division (court) reversed the finding of liability, vacated the award and dismissed the complaint.

The court found that the finding of liability against the co-op was “not based on a fair interpretation of the evidence.” “The evidence failed to show that the odor of cigarettes rendered plaintiff’s apartment uninhabitable, breached the proprietary lease, or caused plaintiff to be constructively evicted.” The court further opined that the “plaintiff’s evidence failed to show that the odor was present on a consistent basis and that it was sufficiently pervasive as to materially affect the health and safety of occupants….”

The plaintiff’s witnesses testified that “they smelled smoke in the apartment on a handful of occasions over the years, and the source of the smoke was never identified.” Furthermore, the “plaintiff lived in Connecticut, near her workplace, and only intended to stay in the apartment occasionally….” Additionally, the plaintiff’s constructive eviction was time barred. Finally, the court held that the co-op is entitled to attorney fees pursuant to CPLR 3220. The court remanded the matter or a hearing and determination as to those fees.

Comment: David L. Fingerhut of Axelrod, Fingerhut & Dennis, attorney for the co-op, stated inter alia, that “the plaintiff presented no empirical evidence of the existence of smoke or any of its components, such as a nicotine test” and “failed to identify a source of the smoke-like odor as there were no smokers in the area surrounding the shareholder’s apartment and no testimony pointing to any possible source of the claimed odor.” He further asserted that “in order to be entitled to damages for breach of the warranty of habitability, the tenant must actually live in the premises.” He predicted that it is only a matter of time before a second-hand smoke case is presented to a court that will require an analysis of whether cooperative and/or condominium boards or other landlords will be required to provide a “completely smoke free environment.”

Eva Talel of Stroock & Stroock & Lavan, attorney for amicus curiae, Real Estate Board of New York, opined, inter alia, that “Boards and their counsel have relied for decades on the principle that a claim for breach of the Warranty of Habitability can only be asserted by a person who resides in the apartment; pied a terre owners are not eligible.”

Daniel Zemann, Jr. of London Fischer, attorneys for plaintiff, stated the plaintiff intends “to pursue all remedies” and has moved to reargue before the Appellate Division and alternatively for leave to appeal to the Court of Appeals.”

Reinhard v. Connaught Tower Corp., Index No. 602503/08, App. Div., 1st Dept., Decided on May 4, 2017; Richter, J.P., Andrias, Moskowitz, Feinman, Kapnick, JJ.


Landlord—Tenant—Summary Holdover Proceeding—HUD Model Lease—Drug Related Criminal Activity—Neither Parties Nor the Court Had Found Any Decision Which Interpreted the “Outer Bounds of the Area Defined by ‘Near the Premises’”

An owner commenced a summary eviction proceeding. The subject building receives subsidy assistance through the National Housing Act Section 221(d)(3) Below Market Interest Rate program. The petition alleged that a tenant had pleaded guilty to “criminal sale of a controlled substance, a class ‘B’ felony,” following “an undercover ‘buy and bust’” at a building, “four blocks north of the subject building.” The owner cited three sections of the subject lease, as grounds for the eviction. The lease is “identical to the model lease annexed to HUD Handbook 4350.3.” Paragraph 23 of the lease specifies the procedure for terminating a tenancy and the grounds upon which a tenancy might be terminated.

Paragraph 23(c)(3) involves “drug related criminal activity engaged in on or near the premises.” Paragraph 23(c)(4) involves a “determination made by the landlord that a household member is illegally using a drug.” Paragraph 23(c)(10) provides for termination “if the landlord determines that the tenant, any member of the tenant’s household, a guest…has engaged in the criminal activity, regardless of whether the tenant, any member of the tenant’s household, a guest…has been arrested or convicted for such activity.”

The court noted that paragraph 23(c)(10) makes clear that an arrest or conviction based upon alleged criminal activity is not required for a termination. Rather, it is sufficient that an owner has determined that such activity has transpired. The court further explained that paragraph 23(c)(10) “only qualifies the evidentiary threshold for a cause of action under paragraphs 23(c)(3) and (6) rather than creating a cause of action in its own right.” The court reasoned that if paragraph 23(c)(10) constituted “a cause of action in its own right, then paragraphs 23(c)(3) and (6) would be redundant.” The court stated that “[i]f paragraph 23(c)(10) means that engaging in any criminal activity anywhere were to be grounds for termination, then there would be no need for paragraphs 23(c)(3) and (6).” Thus, the court held that “paragraph 23(c)(10) is not its own cause of action for termination.”

In dismissing the owner’s claim based on paragraph 23(c)(4), the court explained that the petition did not allege that the owner had determined that “any household member is illegally using a drug, nor does it contain any facts to support such a claim.”

With respect to paragraph 23(c)(3), the issue was “whether the alleged drug related criminal activity occurred ‘near the premises.’” The court noted that “[t]he lease is required to have the ‘in, on, or near’ language by 24 CFR 5.858 (‘the lease must provide that drug-related criminal activity engaged in, on, or near the premises is grounds for you to terminate the tenancy’).”

Neither party cited, nor had the court located, “any decision, in any jurisdiction, which interprets the outer bounds of the area defined by ‘near the premises.’” However, the court found it was “relevant and useful” to compare the subject language with “23(c)(6), which makes grounds for termination ‘criminal activity by a tenant, any member of the tenant’s household, a guest…: (a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents…or (b) that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises.’” Although “drug related criminal activity is grounds for termination where it occurs ‘near’ the premises, non-drug related criminal activity is grounds for termination if it threatens residents of other properties ‘in the immediate vicinity of the premises.’”

The court cited a dictionary definition of “near” as “to, within, or at, a short distance; to, or in, close proximity.” The dictionary defined “vicinity” as “the state, character, or quality of being near in space; propinquity, proximity.” The court opined that “‘[v]icinity’ is thus effectively the noun version of ‘near.’” The court also noted that the word “vicinity” was modified by the word “‘immediate’ when describing the area within which general criminal activity may be grounds for termination.” The court reasoned that “‘immediate vicinity’ must refer to a shorter distance than ‘near.’”

The respondent argued that “the drug related criminal activity is only grounds for termination if it occurs within the ‘curtilage’ of the premises, or at most, within 200 feet, deriving that distance from the Bawdy House Law (RPAPL 715).” However, the court opined that “limiting the scope of paragraph 23(c)(6) to that distance would render the distinction between ‘immediate vicinity’ and ‘near’ as practically meaningless.” The court also cited the legislative history.

Additionally, the court observed that “the distance between the [building] and the address at which [the respondent] was arrested, is four New York city blocks (the size of which vary across the city), approximately 1,085 feet, or approximately 1,584 feet, depending on the method of measurement.” Google Maps, measuring the distance that a pedestrian would have to travel between two points showed that the arrest occurred 1,584 feet away from the building. Google indicated that “it would take six minutes to walk that distance at a rate of 20 minutes per mile.” However, using the straight-line method, the distance between the point of arrest and the building is 1,085 feet.

The court held that “[i]n the absence of other guidance, and having interpreted ‘near’ the premises to mean a distance farther than one in the ‘immediate vicinity’ of the premises,” the address of the arrest was “‘near’ the subject premises” and therefore, “the petition states a cause of action.”

One Eighteen Hous. Dev. Fund v. Smith, 64209/2016, NYLJ 1202785855806, at *1 (Civ., NY, Decided May 3, 2017), Weisberg, J.