In an implied warranty of habitability context, secondhand smoke qualifies as a condition that invokes the protections of Real Property Law § 235-b under the proper circumstances. As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction.
The tenants' new neighbors constantly smoked in the common hallway and in their apartment. The secondhand smoke penetrated into the tenants' premises. Although the tenants complained to the building superintendent and the landlord about the hazardous secondhand smoke condition, nothing was done. As a result, the tenants wrote a letter to the landlord notifying him of their decision to vacate the premises. When the landlord sued the tenants for unpaid rent, they counterclaimed for constructive eviction due to the secondhand smoke.
Can second-hand smoke amount to a breach of the warranty of habitability in a constructive eviction case?
The court found that the secondhand smoke qualified as a condition that invoked the protections of Real Property Law § 235-b. As such, it could be grounds for a constructive eviction. Consequently, the landlord's motion to strike and/or dismiss the tenants' affirmative defenses and counterclaims had to be denied.