Poyck v. Bryant, 13 Misc. 3d 699 (2006)

Citation: Poyck v. Bryant, 13 Misc. 3d 699 (2006)
Parent Document: Poyck v. Bryant, 13 Misc. 3d 699 (2006)
Jurisdiction: New York (state)
Effective Date: 2006-08-24
Original Source: https://www.courtlistener.com/opinion/6307489/poyck-v-bryant/ ↗

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While there appear to be no reported cases dealing with secondhand smoke in the context of implied warranty of habitability,1 secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors,2 smoke odors,3 chemical fumes,4 excessive noise,5 and water leaks and extreme dust penetration.6 Indeed, the United States Surgeon General, the New York State Legislature and the City of New York City Council declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard. (U.S. Surgeon General’s Report on *702The Health Consequences of Involuntary Smoking [Dec. 1986]; Public Health Law § 1399-n [1]; Administrative Code of City of NY § 17-501.) Therefore, this court holds as a matter of law that secondhand smoke qualifies as a condition that invokes the protections of Real Property Law § 235-b under the proper circumstances. As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction. (See, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]; cf., East End Temple v Silverman, 199 AD2d 94 [1st Dept 1993] [holding that a single occurrence of smoke did not amount to a substantial deprivation of use and enjoyment of the residential premises].)

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