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LANDLORDS  AND SECONDHAND SMOKE COMPLAINTS:
THE  APPELLATE DIVISION CLEARS THE AIR

By Joseph Rapice and Arthur P. Xanthos

This Firm recently won a successful appeal concerning whether a co-op has an obligation to guarantee an odor free apartment for a shareholder.  The appellate decision, Reinhard v. Connaught Tower Corporation, is available on this website under Publications.

Shareholder-tenant Susan Reinhard sued her co-op, the Connaught Tower Corporation, alleging that a cigarette smoke odor condition rendered her apartment uninhabitable for nine years, thereby forcing her to live in another premises.  Prior to trial, plaintiff had made a settlement demand of $600,000.00, essentially making settlement impossible and forcing a trial.

At a three-day non-jury trial, plaintiff testified that she, her family, and a close family friend smelled cigarette smoke in the apartment on a handful of occasions over a nine year period, although the source of the odor was never identified.  Plaintiff also proffered the testimony of an expert industrial hygienist, who testified that air passageways existed behind the walls in plaintiff’s apartment, implying that offensive odors could have been entering the apartment via those passageways.  The industrial hygienist also testified that he too smelled a smoke odor in the apartment during his inspections. 

In defense, we noted at trial that plaintiff’s expert, although he could have done so, failed to do a nicotine test.  We pointed out as well via cross-examination that such tests are inexpensive and easy to do.  We further demonstrated that without such objective testing and data, plaintiff could show no threshold amounts of any toxin (i.e.,secondhand smoke) in the apartment.   Essentially, we proved that the only objective evidence presented by plaintiff was that yielded by her nose – she smelled something she did not like.

At trial we also introduced other critical facts: plaintiff was a full time resident of Connecticut, never actually inhabited her apartment, and instead desired to use the apartment as a Manhattan pied a terre.

Despite these facts, the trial court ruled that the co-op had breached the proprietary lease and the statutory warranty of habitability, thereby constructively evicting Plaintiff.  The trial court awarded plaintiff a full return of nine years of maintenance payments in an amount of $120,000.00, and an award of attorneys fees.  In so ruling, the trial court found that “significant cigarette smoke permeates and pollutes the apartment,” that the apartment was “infiltrated by secondhand smoke”, and that the apartment was “smoke-polluted.” We appealed that decision.

On May 4, 2017, the Appellate Division First Department unanimously reversed the trial court’s decision, dismissed plaintiff’s complaint in its entirety, and awarded attorneys’ fees to our client – the co-op.  The appellate court held that the evidence failed to show that the subjective odor of cigarettes on a few occasions over nine years rendered plaintiff’s apartment uninhabitable.  Critically, the appellate court reasoned that plaintiff failed to show that the alleged odor was present on a consistent basis and that it was sufficiently pervasive as to affect the health and safety of the occupants. (The Court also noted that plaintiff lived in Connecticut and only intended to stay in the apartment occasionally.) 

The Reinharddecision marks a significant victory for building owners, cooperatives, and condominium boards, as well as for their insurers.  The trial court’s ruling had temporarily opened a Pandora’s Box with regard to habitability claims, as it seemed to imply that a tenant need only claim a subjective odor to recover a full rent abatement.   (Indeed, this Firm had seen an uptick in smoke odor cases following that decision.)  The Appellate Division First Department’s decision, however, reaffirmed two rules: (i) that a plaintiff-tenant must present objective evidence of the presence of a toxin, a threshold level of it, and proof of a causal connection to health and safety of an occupant; and (ii) that a claim based upon the habitability of an apartment dwelling requires proof that the plaintiff occupied the dwelling. 


                                                                                                                -5/9/17
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Ignoring Court Ordered Discovery Leads to Preclusion of Tenant's Claim, by Arthur Xanthos

Dentists are fond of saying if you ignore your teeth, your teeth will go away.  The same is true in litigation: ignore your discovery obligations and your claim will go away. This Firm is defending a building owner in a case brought by a tenant (who happens to be a lawyer).  The tenant alleges among other things bodily injury from second-hand smoke in his apartment.  As is customary, we demanded medical authorizations (to secure medical records related to the tenant's treatment) and a bill of particulars compelling the plaintiff to particularize his bodily injuries.  We also made sure the court included those demands in several court orders.

For unknown reasons, the plaintiff-tenant-lawyer refused to hand over medical authorizations and refused to particularize his injuries.  After several attempts at securing the documents failed, this Firm made a motion to compel the tenant to produce the medical authorizations and to serve a meaningful bill of particulars. That motion resulted in an order, with which the plaintiff-tenant-lawyer failed to comply. So another motion was made, and this time an order was sought to preclude/dismiss the tenant's bodily injury claims.  That second motion resulted in a more stringent order setting another deadline for the tenant's compliance, and warning the tenant of penalties for non-compliance.  The tenant again failed to comply. At a subsequent conference and upon being advised of the tenant's non-compliance, the court after oral argument precluded the tenant from any bodily injury claims at trial, and dismissed any negligence claims found in his complaint.  A copy of this decision/order (Johnson v. 78/79 York) can be found at this Firm's website (www.gbglaw.com) under Publications.

Preclusion orders are very rare, especially against pro se plaintiffs.  Counsel should expect to make more than one motion, and should request a progressively stronger sanction with each motion made.  Obtaining such an order is not a quick exercise either, as it took nearly two years to secure the one discussed herein.                                                                  -APX 12/16/14
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