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Tenant Prevails Against Cooperative And Avoids Eviction By Proving That Cigarette Smoke And Odors Did Not Violate Her Proprietary Lease

By Massimo F. D'Angelo


By: Scott E. Mollen

March 11th, 2015

Landlord—Tenant—Holdover Proceeding—Tenant Allegedly Violated Substantial Obligation of Her Tenancy and Terms of Her Proprietary Lease By Allowing Cigarette Smoke and Odors to Escape Her Apartment and Permeate A Corridor—Subjective Testimony as to Odor Was Insufficient to Demonstrate Violation of Proprietary Lease and House Rules—No Expert Testimony

A COOPERATIVE CORPORATION commenced a holdover proceeding against the respondent (tenant) on the ground that the tenant had violated a “substantial obligation of her tenancy and has violated substantial terms of the proprietary lease” (lease) for the subject apartment. The notice to cure (notice) alleged that in violation of the lease and the landlord’s house rules, the tenant had “unreasonably allowed cigarette smoke and/or other odors to escape the [apartment] and permeate throughout the public corridor outside the [apartment],” that building employees (employees) had observed the odor of cigarette smoke and the building’s managing agent (agent) had received several complaints from other tenants.

The tenant countered that the landlord had “unclean hands” because of a lengthy history of hostility between the tenant and members of the landlord’s board of directors (board) and certain of the landlord’s “powerful shareholders” and the landlord is estopped from bringing the proceeding because the tenant had been caused to change her position to her detriment “due to the personal hostility between [landlord] and [tenant].” The tenant counterclaimed for attorney fees, damages and punitive damages for intentional infliction of emotional distress and for prima facie tort.

The agent admitted that although there were 107 units in the building, only one shareholder had ever complained about the odor. Neither the agent nor the landlord had retained “any experts or employed any machines to determine the odor or its strength.” The complaining shareholder (complainant) testified, inter alia, that she had detected odors for a long period of time, the source of the odor was the tenant’s apartment, the tenant’s door would “always be open” and “that is when the smell in the hallway was really bad.” She further testified that the odor was “offensive” and she was concerned about how “second hand smoke would affect her children.” She also claimed that she could “detect the odor at least four (4) days out of the week.” She allegedly first complained to the landlord about the odor approximately 10 years ago. Additionally, she testified that after a few years, the tenant advised the complaining shareholder “to write a note and slip it under her door anytime she smelled the odor in the public hallway.”

The complaining shareholder was a real estate broker and had sold several apartments in the building. However, she testified that “she was not an interested broker in the sale of [the apartment].”

The tenant presented witnesses who testified that they had never smelled cigarette odor in the hallway. The tenant testified that she had switched to electronic cigarettes in March 2013 and was “unaware that the building had rules regarding any kind of ‘annoying’ smell.” She further testified that upon becoming aware of the alleged problem, she had the building superintendent install “insulating flaps on the bottom of the back and front door,” she had purchased “two new couches, disposed of the old couch and a chair, and retained a cleaning service.” She also testified that she regularly cleaned the apartment by vacuuming the floors and walls, and cleaning the glass and mirrors.

The court found that the landlord had “failed [to] prove, by a preponderance of the evidence, that [tenant]…violated the…lease and house rules.” The lease provided that shareholders will “not permit unreasonable cooking or other odors to escape into the building.” The lease also barred shareholders from permitting or making “any unreasonable noises or anything which will interfere with the rights of other lessees or unreasonably annoy them….” Although the lease mentioned “odors,” the lease did not “prohibit ‘smoke’ or ‘smoking.'” The house rules barred shareholders from interfering with “the rights, comfort or convenience of “lessee…” The house rules did not mention odors. Although the notice stated that the agent had received complaints from “other building tenants,” the agent admitted that “no ‘other’ tenants complained.” However, the court explained that a proceeding should not be dismissed based on “a de minimus technicality in the notice,” where the tenant “could reasonably ascertain the grounds upon which petitioner commenced this proceeding.”

The court held that the landlord had failed to prove that the tenant permitted “offensive cigarette odors to emanate from the [apartment] and permeate the public hallway….” The court noted that “[a]lthough there may have been an occasional odor in the…hallway,” the landlord “failed to prove that the odor was so offensive as to interfere with the rights, comfort or convenience of other tenants within the building.” There was no expert testimony that proved that “the content of the air or that the alleged ‘odor’ was dangerous or hazardous.”

The petitioner had not retained “any experts or employ[ed] any machines to determine the odor or its strength.” Moreover, all of the building floors were connected to the same ventilation shaft and vents were designed to carry the air and odors upward and outside. However, even though the apartment is “on the second floor, below the…majority of all the apartments in the building,” there were no complaints from other shareholders.

The court also noted that the complaining tenant’s husband “could not state how many times he smelled ‘even a faint smell of smoke’ in the…hallway” even though he asserted that he was “‘very sensitive’ to the smell of cigarette smoke.” Additionally, the court also cited the testimony of two other shareholders who testified that they could not detect odors in the hallway.

The court held that the complaining tenant’s “subjective testimony that the cigarette odor offended her is not sufficient to prove…that [tenant] has violated the…lease and house rules by permitting offensive odors to emanate from her apartment and into the common areas of the building.” Accordingly, the court dismissed the petition.

Comment: Adam Leitman Bailey, counsel to the respondent tenant, explained that they had invited the landlord to participate in a joint inspection of the hallway and the landlord’s representatives had conceded that “they could not discern any smoke odors in the hallway.” Bailey stated that the landlord’s representatives sought to enter the tenant’s apartment “in direct violation of the tenant’s privacy rights.” He further noted that the tenant had an “explicit right to smoke in her apartment given that smoking was not restricted under her proprietary lease.”

Bailey also stated that the landlord claimed that “it needed to enter the tenant’s apartment in order to determine whether smoke odors were escaping into the hallway whenever the tenant opened the door.” Bailey argued that “even if the smoking odors were present, the judgment that they are or are not offensive is purely a subjective matter” and the proceeding should have been dismissed even if the landlord’s factual allegations were proven.

Bailey further emphasized that “people may be evicted only for objectively bad conduct” and “the conduct complained of was at worst purely subjectively bad, as seen in the eyes of some people” and only residents of one apartment out of more than 100 apartments had complained.

An attorney at [redacted], attorney for the landlord stated that “[w]e respectfully disagree with Judge Peter Wendt’s decision and have filed a notice of appeal of his order. There was unrebutted testimony that clearly established the existence of strong, offensive cigarette odors emanating from the tenant’s apartment, and that the lease default was not timely cured.”

201 W. 89th Owners v. Mostel, Civ. Ct., N.Y. Co., Index No. L&T 083986/13, Wendt, J.

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Massimo F. D'Angelo

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS