Q: I’m a shareholder in a large co-op in Queens. The lease prohibits odors from traveling from one apartment to another, but doesn’t include a smoke-free policy. My elderly downstairs neighbor lives in a rent-stabilized apartment and can no longer go outside to smoke. My bedroom smells like her ashtray, and I have been sleeping on my couch. The co-op’s management has sent her notice after notice for four years, and recently reached a settlement with her after threatening to bring an eviction case. They agreed that the owner of her apartment would install a commercial smoke abatement machine, but it’s been 10 weeks with no installation. What do I do now?
A: You should be able to live without secondhand smoke, as described in your lease. However, the co-op has made some effort to abate the smoke and your neighbor has protections against eviction as a rent-stabilized tenant — both of which work against your chances of success in housing court.
“No one has a right to let smoke emanate into your apartment, but when it’s a rent-stabilized tenant, it makes it more difficult to take legal action,” said Lisa A. Smith, a partner who practices real estate law at Smith, Gambrell & Russell, LLP, in Manhattan.
You could bring the co-op to court, but it is covered by the business judgment rule, which protects co-op board actions that are made in good faith, making a legal claim difficult. Ultimately, it’s the apartment owner who is responsible for eliminating the odor.
Even if your building did have a no-smoking policy, it likely wouldn’t help your situation if it were enacted after your neighbor moved in. Rent-stabilized tenants typically enjoy the privileges they had when they arrived in the building.
You can request that the co-op board hire a company that administers smoke tests, which can determine how and where the smoke is entering your apartment. The co-op should also gain access to your neighbor’s apartment to perform this test and make any necessary repairs.
Don’t bother pressuring building management to compel the installation of the smoke abatement equipment, said Adam Leitman Bailey, a real estate lawyer in Manhattan who has handled cases involving smoke odors. “That machine has never worked to solve any case,” in his experience, he said.
Having your neighbor open her windows while she smokes is another potential solution, even in winter. “This is usually a November-through-end-of-April problem,” Mr. Bailey said.
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