Co-Ops—Cigarette Smoke Permeated Apartment—Plaintiff Lost 97 percent of the Use of Her Apartment—Constructive Eviction—Warranty of Habitability—Breach of Contract—Warranty Damages Are Available to Plaintiff Who Never Intended to Inhabit the Apartment—Owners of Pieds-a-Terre Are Entitled to Smoke-free Environments, Just Like Owners Who Use Apartments as Primary Residences—”Tenant Should Not Have to Develop Lung Cancer to Obtain an Abatement”
A non-jury trial involved issues of whether the “plaintiff’s co-operative apartment was significantly polluted by second-hand cigarette and/or cigar…smoke seeping in from other apartments…building, owned by defendant” cooperative [co-op] corporation (defendant) and if it was, “what is the appropriate remedy, if any?” The plaintiff asserted claims for constructive eviction, breach of the warranty of habitability (WOH) and breach of contract.
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