New York Miscellaneous Reports

POYCK v. BRYANT, 13 Misc.3d 699 (2006) 2006 NY Slip Op
26343, 820 N.Y.S.2d 744 PETER POYCK, Plaintiff, v. STAN
BRYANT et al., Defendants. 33752 CVN 2002. Civil Court of
the City of New York, New York County. August 24, 2006.

Meyers, Saxon & Cole, Brooklyn (Gerald Slotnick of
counsel), for plaintiff. Guralnick & Sandercock, LLP, New
York City (Margaret Sandercock of counsel), for
defendants. Page 700




The novel issue to be determined herein is whether second
hand 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. Most
urban dwelling in New York City comprises “vertical living”
in highrise apartment buildings with possibly multiple
neighbors in all directions. With multiple neighbors living
beside each other comes basic duties and responsibilities.
There is a duty to protect each other’s right to privacy
and a responsibility not to invade a neighbor’s privacy.
The unwanted invasion of privacy comes in many guises such
as noise, smells, odors, fumes, dust, water and even
secondhand smoke.

The key to avoiding such unneighborly behavior is for the
neighbor to follow the often forgotten “Golden Rule”
— You shall love your fellow or neighbor as
yourself. The Golden Rule is a general principle of ethics
which essentially admonishes neighbors as follows: What is
hateful to you, do not do to your neighbor. The landlord
also has an obligation to ensure that the conditions do not
render the apartment “unsafe and uninhabitable” or prevents
the premises from serving their intended function of
residential occupation. When neighbors fail to respect each
other and the landlord does not act, the law imposes its
will on landlords and tenants through the statutory enacted
implied warranty of habitability pursuant to Real Property
Law § 235b.

Implied Warranty of Habitability

In the landmark case of Park W. Mgt. Corp. v Mitchell (47
NY2d 316 [1979]), the Court of Appeals defined the history
and parameters of Real Property Law § 235b or the
implied warranty of habitability. Real Property Law
§ 235b was enacted in August 1975, to provide modern
urban dwellers with much needed protections and rights to
compel landlords to make necessary repairs and provide
essential services. (L 1975, ch 597.) In other words, Real
Property Law § 235b placed “the tenant in parity
legally with the landlord.” (1975 Sen J 77667776 [Remarks
of Senator Barclay].) For more than 30 years, this powerful
law continues to impose a warranty of habitability in every
landlordtenant relationship where the landlord impliedly
Page 701 warrants as follows: “[F]irst, that the premises
are fit for human habitation; second, that the condition of
the premises is in accord with the uses reasonably intended
by the parties; and, third, that the tenants are not
subjected to any conditions endangering or detrimental to
their life, health or safety.” (Park W. Mgt. Corp., 47 NY2d
at 325.)

The scope and breadth of Real Property Law § 235b is
far reaching. Landlords must warrant against “latent” and
“patent” conditions throughout the entire tenancy
“occasioned by ordinary deterioration, work stoppage by
employees, acts of third parties or natural disaster” (47
NY2d at 327 [emphasis added]). The standard for a breach of
the implied warranty of habitability is measured “in the
eyes of a reasonable person” not in a vacuum which ignores
the “essence of the modern dwelling unit.” (Id. at 328.)
Real Property Law § 235b was intended to provide an
objective standard for “those essential functions which a
residence is expected to provide.” (Solow v Wellner, 86
NY2d 582, 589 [1995].)

Secondhand Smoke

While there appear to be no reported cases dealing with
secondhand smoke in the context of implied warranty of
habitability,[fn1] secondhand smoke is just as insidious
and invasive as the more common conditions such as noxious
odors,[fn2] smoke odors,[fn3] chemical fumes,[fn4]
excessive noise,[fn5] and water leaks and extreme dust
penetration.[fn6] Indeed, the United States Surgeon
General, the New York State Legislature and the City of New
York City Council declared that there is a substantial body
of scientific research that breathing secondhand smoke
poses a significant health hazard. (U.S. Surgeon General’s
Report on Page 702 The Health Consequences of Involuntary
Smoking [Dec. 1986]; Public Health Law § 1399n [1];
Administrative Code of City of NY § 17501.)
Therefore, this court holds as a matter of law that
secondhand smoke qualifies as a condition that invokes the
protections of Real Property Law § 235b under the
proper circumstances. As such, it is axiomatic that
secondhand smoke can be grounds for a constructive
eviction. (See, Barash v Pennsylvania Term. Real Estate
Corp., 26 NY2d 77 [1970]; cf., East End Temple v Silverman,
199 AD2d 94 [1st Dept 1993] [holding that a single
occurrence of smoke did not amount to a substantial
deprivation of use and enjoyment of the residential

Of course, the court must look to the operative facts to
determine whether or not the secondhand smoke was so
pervasive as to actually breach the implied warranty of
habitability and/or cause a constructive eviction. This
court will now turn to the facts of this case to make such
a determination.

Procedural History

Plaintiff Peter Poyck (plaintiff, landlord or Poyck)
commenced this plenary action to collect rent and late
charges for the months of August 2001 through December
2001, at $2,597 per month. (See exhibit E to the motion.)
Defendants Stan Bryant and Michelle Bryant (defendants,
tenants, or the Bryants) interposed a written answer, inter
alia, denying the allegations of the complaint and
asserting their third and fourth affirmative defenses and
first and second counterclaims for breach of warranty of
habitability and constructive eviction due to secondhand
smoke. (See exhibit F to the motion.)

In or about June 2005, plaintiff moved for an order
pursuant to CPLR 3212 granting him summary judgment
striking and/or dismissing the defendants’ third and fourth
affirmative defenses and first and second counterclaims.
The motion was adjourned to October 14, 2005. On the return
date, this court denied the motion without prejudice on
procedural grounds.[fn7]

In or about March 2006, plaintiff moved for an order
pursuant to CPLR 2221 (e) and 3212 renewing his prior
motion for Page 703 summary judgment striking and/or
dismissing defendants’ third and fourth affirmative
defenses and first and second counterclaims. The motion was
adjourned to August 1, 2006. Defendants opposed the motion.



At all times relevant hereto, plaintiff was the owner and
lessor of condominium unit No. 5D located at 22 West 15th
Street, New York, New York. By virtue of a residential
lease dated November 11, 2000, defendants were the tenants
or lessees of the subject premises for a twoyear term from
January 1, 2001 through December 31, 2002, at $2,597 per
month. (See exhibit A to the motion.) Defendants allegedly
moved into the subject premises in 1998 and vacated at the
end of August 2001.

Uncontroverted Facts

After living in the subject premises for approximately
three years, in or about March 2001, new neighbors moved
next door to defendants. The new neighbors constantly
smoked in the common fifthfloor hallway and in apartment
5C. The tobacco smoke or secondhand smoke penetrated into
the subject premises. At that time, defendants complained
to the subject building’s superintendent, Frank Baldanza,
about the hazardous secondhand smoke condition. The super
allegedly spoke to the defendants’ nextdoor neighbors to no
avail. The incessant smoke continued unabated.

When the super’s efforts failed, defendant Stanley Bryant
wrote a letter dated June 29, 2001 to the super and to
plaintiff Peter Poyck as well as to Poyck’s attorneyinfact,
Charles Corso, seeking a solution to the hazardous smoking
problem and informing them that they may consider a
“healthier living situation” as follows:

“To date, their [nextdoor neighbors in apartment 5C]
tobacco smoke continues to permeate this end of the fifth
floor hallway and my home. This is not simply a matter of
unpleasant odors; it represents an ongoing health hazard
for my wife who is recovering from her second cancer
surgery and who is extremely allergic to tobacco smoke.
Prior to the current tenant moving into 5C, this problem
did not exist on the fifth floor. Page 704

“To try to remedy the situation, I have sealed my
apartment entry door with weather stripping and a draft
barrier. I operate two hepa air filters round the clock,
incurring additional electric charges. Despite these
efforts, we can still smell the smoke from 5C in our

“If you can help in any way to remedy this problem, we
would be extremely appreciative. Failing that, we must
consider finding a healthier living situation.” (See
exhibit B to the motion.)

Notwithstanding the above, the landlord took no action to
curtail their neighbors’ smoking that was invading the
Bryants’ home. About 30 days later, defendants decided to
vacate the subject premises due to the incessant secondhand
smoke and wrote a letter to their landlord dated August 1,
2001, notifying him of their decision as follows:

“Due to my wife’s continuing health concerns and our most
recent and apparently ongoing `smoking’ issue with our
next door neighbor (please refer to our letter to Frank
Baldanza dated June 29th) we have found it necessary to
look elsewhere for more appropriate living quarters.
Please note that we will be vacating this apartment by the
end of August, 2001.” (See exhibit C to the motion.)

Summary Judgment

The movant has the initial burden of proving entitlement
to summary judgment. (Winegrad v New York Univ. Med. Ctr.,
64 NY2d 851 [1985].)

[T]he remedy of summary judgment is a drastic one, which
should not be granted where there is any doubt as to the
existence of a triable issue (Moskowitz v Garlock, 23 AD2d
943, 944) or where the issue is even arguable (Barrett v
Jacobs, 255 NY 520, 522), since it serves to deprive a
party of his day in court. Relief should be granted only
where no genuine, triable issue of fact exists” (Broadway
— 111th St. Assoc, v Morris, 160 AD2d 182, 185
[1st Dept 1990]).

Real Property Law § 235b Inapplicable to Condominium
Board of Managers

In this case, neither party asserted claims against the
condominium’s board of managers because the implied
warranty of habitability pursuant to Real Property Law
§ 235b Page 705 does not apply to the relationship
between the board of managers of a condominium and an
individual unit owner. (Frisch v Bellmarc Mgt., 190 AD2d
383 [1st Dept 1993].) However, the defendants as tenants of
unit 5D may rely on Real Property Law § 235b against
the plaintiff, the only landlord in this action. (190 AD2d
at 390.)

Landlord’s Lack of Control of Third Parties

The gravamen of plaintiffs motion is that he cannot be
held liable for the actions of third parties beyond his
control such as the neighbors in unit 5C. This argument is
misplaced as the Court of Appeals, since 1979, has clearly
stated that the acts of third parties are within the scope
of a landlord’s responsibility pursuant to Real Property
Law § 235b. (Park W. Mgt. Corp., 47 NY2d at 326.)
The courts have continuously held that the implied warranty
of habitability can apply to conditions beyond a landlord’s
control. (Elkman v Southgate Owners Corp., 233 AD2d 104
[1st Dept 1996] [an alleged noxious odor emanating from a
retail fish store in an adjacent building neither owned
nor controlled by the landlord cooperative corporation may
be a breach of the implied warranty of habitability];
Sargent Realty Corp. v Vizzini, 101 Misc 2d 763 [Civ Ct,
NY County 1979] [floods caused by upstairs tenant on four
occasions which landlord allowed to persist resulted in
substantial abatement]; Quasha v Third Colony Corp., NYLJ,
Oct. 10, 1990, at 22, col 2 [Sup Ct, NY County] [noise
emanating from neighbor stated a claim for breach of
implied warranty of habitability]; Solomon v Brandy, NYLJ,
Sept. 7, 1994, at 22, col 6 [Civ Ct, Bronx County] [evicted
neighboring tenant who caused nuisance resulting in lack of
water supply to tenant did not constitute a good faith
defense to the implied warranty of habitability].)

While the landlord contends that he had no control over
the neighbors in apartment 5C, he failed to offer any
evidence that he took any action to eliminate or alleviate
the hazardous condition. The landlord could have asked the
board of managers of the condominium to stop the neighbors
from smoking in the hallway and elevator as well as to
take preventive care to properly ventilate unit 5C so that
the secondhand smoke did not seep into the Bryants’
apartment. Specifically, Real Property Law § 339v
(1) (i) mandates that condominium bylaws restrict the use
and maintenance of both the units and common elements such
as the hallways and elevators so as to “prevent
unreasonable interference with the use of respective units
and of the common elements by the several unit owners.” The
board Page 706 of managers and even the landlord could
have commenced an action for damages or injunctive relief
for noncompliance with the bylaws and decisions of the
board of managers pursuant to the Condominium Act. (See,
e.g., Board of Mgrs. Of Vil. House v Frazier, 81 AD2d 760
[1st Dept 1981], affd 55 NY2d 991 [1982].) Moreover, in the
case of “flagrant or repeated violation” by a unit owner,
the Condominium Act also authorizes the board of managers
to impose sufficient surety to ensure future compliance
with their bylaws and decisions. (Real Property Law
§ 339j.)


Inasmuch as there are triable issues of fact as to whether
the secondhand smoke breached the implied warranty of
habitability and caused a constructive eviction, plaintiffs
motion to strike and/or dismiss the defendants’ third and
fourth affirmative defenses and first and second
counterclaims must be denied. Page 707

[fn1] However, this court’s independent research found the
case of Bender v Niebel (11 Misc 3d 136[A], 2006 NY Slip Op
50502[U] [App Term, 2d & 11th Jud Dists 2006]) wherein the
Appellate Term listed the landlords’ cigarette smoke as
part of a litany of severe conditions that survived a
dismissal motion. While Bender has some precedential value,
it did not directly deal with the single issue of
secondhand smoke emanating from neighbors as opposed to the
landlords themselves.

[fn2] See Elkman v Southgate Owners Corp., 233 AD2d 104
(1st Dept 1996).

[fn3] See Chetworth Constr. Corp. v Casati, NYLJ, May 1,
1985, at 12, col 5 (App Term, 2d & 11th Jud Dists).

[fn4] See Goldman v SearsRobbins/Robbins, NYLJ, June 15,
1998, at 30, col 3 (Civ Ct, NY County, Strauss, J.).

[fn5] See Matter of Nostrand Gardens CoOp v Howard, 221
AD2d 637 (2d Dept 1995).

[fn6] See Minjak Co. v Randolph, 140 AD2d 245 (1st Dept

[fn7] Plaintiff failed to allege and/or attach the
following six items of information: (1) whether plaintiff
is the owner of apartment 5D located at 22 West 15th
Street, New York, New York; (2) whether plaintiff is the
owner and/or tenant of the neighboring apartment 5C of the
subject building; (3) who is the owner and/or tenant of
apartment 5C; (4) who is responsible for overseeing the
common areas such as the hallways and/or elevators in the
subject building; (5) whether there is a “house rule” or
other document such as the “bylaws” which prohibits and/or
restricts smoking in the subject building;and (6) whether
plaintiff is the sponsor and/or owner of the subject
building. (See exhibit G to the motion.)