Co-Ops—Judgment Against a Co-Op Board Based on Second Hand Smoke Reversed by the Appellate Division—Source of Smoke Never Identified—Plaintiff Only Stayed in Apartment Occasionally—Warranty of Habitability—Constructive Eviction

Following a nonjury trial, a trial court found a defendant cooperative corporation (co-op) was “liable and awarded plaintiff certain maintenance payments, interest, and reasonable attorney fees,” in a case involving second-hand smoke. The Appellate Division (court) reversed the finding of liability, vacated the award and dismissed the complaint.

The court found that the finding of liability against the co-op was “not based on a fair interpretation of the evidence.” “The evidence failed to show that the odor of cigarettes rendered plaintiff's apartment uninhabitable, breached the proprietary lease, or caused plaintiff to be constructively evicted.” The court further opined that the “plaintiff's evidence failed to show that the odor was present on a consistent basis and that it was sufficiently pervasive as to materially affect the health and safety of occupants….”