Reinhard v. Connaught Tower Corp.
Supreme Court of the State of New York, County of New York, March 2, 2016
Plaintiff, a shareholder inn the defendant/apartment corporation, purchased a cooperative apartment in 2006 for use as a pied-a-terre. Beginning in January 2007, plaintiff began smelling cigarette smoke in her apartment and informed the superintendent in May 2007. Over the course of the next several years, defendant “suggested and/or attempted various remedies; and/or denied that there was a problem; and/or denied any obligation to remedy the problem.” Although a few guests of plaintiff stayed a few overnights in the apartment, plaintiff refused to occupy the apartment because of the presence of smoke and thus is largely remained vacant.
Plaintiff commenced an action against the apartment corporation for, among other things, constructive eviction, breach of the warranty of habitability and breach of contract. After a non-jury trial, the trail court held in favor of plaintiff and reasoned that “plaintiff and her witnesses testified clearly, credibly, consistently and correctly that significant cigarette smoke permeates and pollutes the apartment.” The Court also noted that second hand smoke can cause or contribute to lung and other cancers and should be taken extremely seriously.
On the breach of warranty of habitability claim, the Court found that plaintiff lost 97% of the use of her apartment and thus she was entitled to be reimbursed for 97% ($117,316.05) of the maintenance she had paid since June 2007 — the month after she notified the apartment corporation of the smoke infiltration.
On the constructive eviction and breach of contract claims, plaintiff was entitled to a 100% abatement as the “value of a smoke-polluted residential apartment is zero,” and plaintiff was entitled to “the value of her apartment had it been smoke-free.” The Court reasoned that the fact that plaintiff’s intended use of the apartment as a pied-a-terre was irrelevant as all inhabitants are entitled to smoke free apartments. Additionally, the Court held that the apartment corporation had a duty under the proprietary lease to “keep the building in good repair, including all of the apartments,” and it is the responsibility of the apartment corporation to determine how to provide smoke-free apartments.
The Court also awarded plaintiff interest at a rate of 9% as well as attorneys’ fees under Real Property Law Section 234.