On November 30, 2011, the New York County Supreme Court handed down a decision in the case of Reinhard v. Connaught Tower Corporation and Olick, requiring co-op boards to act reasonably when residents complain that second-hand smoke is infiltrating their apartments from other parts of the building. This decision is a first in dealing with the Board’s duty to its residents when they make second-hand smoke complaints.

In Reinhard, the plaintiff-owner of an apartment in the co-op located at 300 East 54th Street, sued the corporation and the board president because she detected a strong smell of cigarette smoke in her apartment. She was told by the managing agent and the superintendent to re-caulk the floor, molding and faceplates in her bedroom, which did not eliminate the odor. The board, however, refused to take any action. The plaintiff then hired an engineer who prepared a report demonstrating that smoke was permeating the apartment. The board responded to this report by disclaiming any responsibility for the problem. Plaintiff then sued the corporation and the board president for breach of the warranty of habitability, breach of lease, rent abatement, breach of fiduciary duty, constructive eviction, breach of the covenant of good faith and fair dealing, injunctive relief, negligence and attorney’s fees and sought $1 million in damages as well as punitive damages.

The court held that the second-hand smoke in plaintiff’s apartment breached the warranty of habitability and as a result constituted a constructive eviction, thus, entitling plaintiff to the constructive eviction protections under New York’s Real Property Law. Furthermore, the court determined that the co-op breached plaintiff’s proprietary lease by failing and refusing to take any “reasonable steps” to alleviate the second-hand smoke problem. The court did not hold the board president personally liable because the court determined that a board member cannot be sued individually for actions taken in his corporate capacity, unless there is evidence that the board member engaged in independent tortious conduct.

Co-op boards should now take reasonable steps to assist shareholders with second-hand smoke problems in order to avoid legal action by owners. If Boards have any questions about what constitutes “reasonable steps” to alleviate second-hand smoke problems, they should consult experienced management and/or your legal counsel.