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Snuffed Out

iStock_000009340785XSmallI almost feel sorry for smokers.  Don’t get me wrong.  I don’t smoke. Smoking is disgusting and it kills people.  And secondhand smoke isn’t much better. Everyone knows it even the people who smoke, which is why lots of them don’t want anyone to know they’re smoking.  I have provided reluctant refuge — on my terrace – to friends who don’t want their kids to know about their habit.

But soon my apartment – and yours – may be off limits. The latest salvo in the smoking wars was fired by a Tribeca condo owner who complained the smoke from all the cigarettes the guy next door inhaled was invading his apartment and creating a nuisance.   The bylaws don’t prohibit smoking in our apartment, so leave me alone, the smoker said.  Maybe the bylaws don’t ban smoking, the court said only a few days ago, but they ban objectionable odors, and stale cigarette smoke is pretty objectionable.

And in something of a first the court also said if the stench of rotting food can be a nuisance (as had been previously decided) than so can the smell of secondhand smoke. An added impetus was that owners were aware of a structural defect in the building that caused odors to migrate.

The victory in Tribeca not only provides a potential new weapon to the arsenal of non-smokers, but also presages a trend. This decision of the moment comes on the heels of a win by a commercial tenant whose claim for nuisance was allowed to stand against the cigarette-smoking guy in the suite next door.  And it’s already been held that secondhand smoke can give rise to an action for breach of the implied warranty of habitability.

So where do we go from here?  It seems pretty clear that boards can impose house rules prohibiting smoking in apartments, but that doesn’t mean they will.  Those chieftains don’t want to get caught between smoking and non-smoking tribesmen any more than they want to get trapped between dog lovers and haters.  It’s a no-win game.  A few years back the board at one building on the Upper West Side made headlines when it passed a rule allowing pre-existing owners to continue puffing away, but banning newcomers from the same illicit pleasure.  It went up in smoke a year later.  Now, as you’ve probably read, owners of some rental buildings are trying to do the same thing. 

But dividing the populace into haves and have nots is not a winning strategy, especially in High Rise Society where everyone feels entitled.  Besides, it’s impossible to enforce, as I know firsthand, because when I was a kid my parents banned me from reading comics for fear my brain would turn into mush. So I went to my friend’s apartment  downstairs and read more than my fill. Do you think smokers would be any less resourceful?

But what boards won’t do, the law may do for them or you – at least those of you in the smoke-free camp.  If enough cases like these start coming down the pike I suspect it’s only a matter of time before boards may have no choice but to make you stop smoking in your apartments – or else risk legal liability themselves.  So you’d better prepare to kick the habit now – if you know what’s good for you.

What’s next – a ban on Big Macs?

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