Property II, Pages 455–458

Poyck v. Bryant

Civil Court of the City of New York, New York County, August 24, 2006


Plaintiff leased a condominium unit to defendants for 3 years, with a two-year terms. Three months into their second term, new neighbors moved into the unit next door to defendants. These new neighbors constantly smoked in the common hallway, which penetrated into defendants unit. Defendants complained to the superintendent, who spoke to the neighbors to no avail. Defendants took measures to block the smoke, but it was not successful. One of the defendants was extremely allergic to tobacco smoke. They then wrote to plaintiff, detailing their predicament and efforts to rectify it, but plaintiff did nothing. Defendants then vacated the apartment, writing to plaintiff why.

Four months after defendants moved out, plaintiff sued defendants to collect 4 months of unpaid rent, totaling $2,597. The defendants raised affirmative defenses and counterclaims for breach of warranty of habitability and constructive eviction due to secondhand smoke, based on a New York law requires landlords to protect tenants from, among other things, "acts of third parties" that cause "conditions endangering or detrimental to their life, health, or safety." Plaintiff now seeks to strike and/or dismiss these affirmative defense and counterclaims.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 455, First Sentence

[W]hether secondhand smoke emanating from a neighbor gives rise to a breach of the implied warranty of habitability and a constructive eviction under the realities of modern urban dwelling.


A condition does not have to be within a landlord's control for him to be liable for it. There is no evidence that he took any action to alleviate the hazardous condition, when he could have spoken to the manager of the building, installed better ventilation, or commenced an action against the neighbors for their violation of by-laws of the board of managers.


Secondhand smoke from a neighbor can be grounds for constructive eviction.


Plaintiff's motion to strike defendants' affirmative defenses and counterclaims must be denied.