The Bryants had lived in condominium unit 5-D for three years when new neighbors moved in next door.  The new neighbors constantly smoked in their unit 5-C and in the common fifth floor hallway.  The smoke penetrated the Bryants’ unit.  The Bryants complained to Poyck, who was the owner and lessor of the condominium.  The landlord took no action to curtail the neighbors’ smoking.  The Bryants decided to vacate the premises due to the incessant secondhand smoke entering their unit.  The landlord then sued the tenants for unpaid rent; the Bryants counterclaimed for constructive eviction due to the secondhand smoke.  The landlord moved to strike the Bryants’ affirmative defenses and counterclaims.  The Civil Court of the City of New York denied the landlord’s motion to strike and/or dismiss, ruling that “in the context of implied habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise and water leaks and extreme dust penetration.”  See Romano, J., “New Impetus to Ban Secondhand Smoke,” New York Times, October 1, 2006.

2006 N.Y. Misc. LEXIS 2278, 2006 N.Y. Slip Op. 26343.