Wednesday, March 9, 2016
Failure to Provide A Smoke Free Environment Entitles Co-op Owner to Reimbursement of Substantial Maintenance Fees
A recent decision of a New York trial court proved very costly for a cooperative.
An owner successfully sued the co-op for breach of the warranty of habitability, constructive eviction and breach of contract based on the infiltration of second hand smoke into the owner's apartment.
The New York Real Property Law § 235-b, applicable to cooperatives, provides a lessor's warranty that a unit will be free from any conditions that are dangerous or hazardous to the occupant's life, health or safety.
The co-op was found, inter alia, to have breached the warranty of habitability by permitting the apartment to be infiltrated by second hand smoke.
According to the decision, the plaintiff's complaints about the smell of smoke were ignored by the co-op and the plaintiff was forced to vacate.
The court noted that "as a matter of fact, the value of a smoke polluted residential apartment is zero . . . and that the plaintiff is entitled to a 100 percent abatement . . . " Reinhard v. Connaught Tower Corp., 602503/2008, NYLJ 120275100993 (Sup. NY Decided January 25, 2016) As such, the plaintiff was entitled to reimbursement of maintenance fees in excess of $100,000.00!
In addition to the abatement of fees, pursuant to the terms of the proprietary lease, as the prevailing party, the plaintiff was entitled to reasonable attorney's fees incurred in connection with the lawsuit.
The decision leaves open questions concerning a co-op's options. Should it to exclude smokers from the building or "smoke proof" units.
UPDATE: Recent Clarifications from the New Jersey Department of Health on the Amendments to the Public Recreational Bathing Code
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