In buildings that are not smoke free, smoke-odor complaints are commonplace. Someone in an apartment smokes and the smoke finds its way in vents, through walls or floors, into adjacent apartments. In cooperatives, there is a warranty of habitability issue and in condominiums, a nuisance issue. The obligation of the cooperative corporation or the condominium association to deal with the complaint is a difficult one. Assuming they are responsible for stopping the odor condition, how do they do it? Very difficult. Maybe create a rule deeming a coop shareholder’s conduct (smoking and allowing secondhand smoke to eminate out of the apartment) objectionable or maybe a condo rule making a unit owner’s like conduct a nuisance. Trying to stop the odor from emanating can be quite a task and almost impossible. Sometimes convincing the offender to use an air purifier or other device to “eat” the smoke may help; particularly if the offender is ultimately responsible and may suffer exposure.
This situation manifested itself in a NYC cooperative called Connaught Tower over the last several years and a Supreme Court Judge in Manhattan decided to punish the cooperative Board for not doing much of anything to cure the condition. The punishment being disgorgement of maintenance back to 2007, amounting to $120,000 plus interest and attorneys’ fees. It appears that the cooperative’s general liability carrier was defending the case but it is not clear whether there was a reservation of rights in place by the insurance carrier so that the cooperative is on its own in paying the damage.
The Connaught Tower’s Board’s big mistake was not taking any reasonable action to try to intervene and abate the odor condition that a unit owner, Mrs. Reinhard was living with for years. The Supreme Court Justice on the case was a former law assistant to a Judge and was disturbed by the Board’s lack of action to the tune of over $120,000. The key for a Board faced with a second-hand smoke complaint is, at the very least, some action to try to intervene and stop the odor condition. We often intervene as negotiators or mediators to try to avoid these types of odor complaints from escalating as it did at Connaught Tower.
