A plaintiff shareholder in a cooperative corporation (co-op) commenced an action for damages and injunctive relief against the co-op and the President of the Board of Directors (president), “for their failure to remediate secondhand smoke seeping into her apartment.” The president and the co-op moved for summary judgment dismissing the complaint. The plaintiff cross-moved for summary judgment.

The plaintiff claimed that after she purchased and renovated her apartment, she detected a “strong smell” of cigarette smoke that was “entering into her apartment from other areas of the building.” The plaintiff claimed that the smoke “caused her to suffer from tightness in her chest, coughing, headaches, and watering eyes.” The plaintiff allegedly complained to the co-op and its manager. The building superintendent inspected the plaintiff’s apartment and suggested that the plaintiff “re-caulk the floor, molding and outer faceplates in her bedroom.” However, the plaintiff claimed that smoke “continued to permeate her apartment even after this work was done.” The plaintiff again reported the smoke condition to the manager and superintendent. Thereafter, a management employee (employee) detected a “slight smell reminiscent of cigarette smoke” in the bedroom. The employee advised the co-op board of his finding. The board minutes indicated that the employee had detected “the existence of faint odors,” but “they were neither strong enough to be identified nor of a magnitude, in his opinion, to render the apartment uninhabitable.” The board thereafter advised the plaintiff that the co-op was not obligated “to cause any further work to be done at the corporation’s expense.”

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