Pursuant to a written lease, Cannon was to occupy an apartment of the plaintiff’s from May 7, 2008 through May 31, 2009, with a monthly rent of $2,825.  In September 2008, the apartment directly below Cannon’s was occupied by a smoker.  Cannon complained to the landlord about the new tenant’s smoke seeping into her apartment.  An addendum to the lease, which was signed by the new tenant, states that “Tenant further acknowledges and understands that causing the infiltration of second-hand smoke into the common areas of the Building and/or into other apartments in the Building, may constitute a nuisance and health hazard….Tenant acknowledges and agrees that the prevention by Tenant, its invitees and guests, of the infiltration of second-hand smoke into the common areas of the Building and/or into other apartments in the Building is OF THE ESSENCE to this Lease…”  After several months, Cannon did not pay January’s rent, failed to pay the rent due on February 1, 2009 and vacated the apartment on February 4, 2009.  The plaintiff sued in order to collect approximately $12,000 in unpaid rent.  A District Court judge (Nassau County) ruled that Cannon had been constructively evicted because of the secondhand smoke and was entitled to an abatement of her rent for October 2008 (10%), November 2008 (20%), December 2008 (30%) and January 2009 (40%).  The Court ruled that “[w]hen a tenant’s smoking results in an intrusion of second-hand smoke into another tenant’s apartment, and that tenant complains repeatedly, the landlord runs a financial risk if it fails to take appropriate action.  This case involves such a situation.”  See Fung, A., “Smoke Gets Up Landlord’s Nose in Court,” Crain’s New York Business, February 8, 2011.

30 Misc.3d 1213A, 924 N.Y.S.2d 312, 2001 NY Slip Op 50054(U). 2011 N.Y. Misc. LEXIS 73.