My building is rent-stabilized, and for past few months, my neighbors who smoke have been stinking up the hallways. There are no-smoking signs posted on each floor, and a sign outside stating that folks cannot smoke within a certain amount of feet of the doorway. What is the penalty for violating this?
The answer depends on where exactly your neighbors are smoking, our experts say.
Last summer, a new smoking law went into effect that requires all multi-dwelling buildings to establish and clearly post a smoking policy. Note that this doesn't mean smoking is banned inside apartment buildings, but rather that every building must determine its own rules regarding smoking. (Many rental, co-op, and condo buildings in New York City are smoke-free; here's how to find them.)
Whatever your building's policy, smoking in common spaces—including hallways, elevators, and lobbies—is against the law.
"If a resident is aware of a neighbor doing so, he or she should report the matter in writing (even email) to the managing agent or owner, and should also file a complaint with 311.gov," says Aaron Shmulewitz, attorney with Belkin Burden Wenig & Goldman. "If smoke odors are permeating into a resident’s apartment from common areas, that would be a separate type of violation, which the affected resident should also report in writing to the managing agent or owner as well as to 311. The owner of the building can be fined by the city for smoking occurring in common areas; the owner also has the obligation to stop such permeation into an affected apartment."
However, if the issue is that your neighbors are smoking outside or in their own units, and the odor is drifting into your apartment and common spaces, it's a different matter. You might begin by documenting the incidents and speaking to your neighbors or landlord about the issue. SmokeFreeHousingNY has some suggestions for how to approach this.
It could be difficult to take legal action against neighbors smoking in their own apartments in a building that's not smoke-free, especially a rent-stabilized one, where tenants have more protection from eviction. However, there is an argument to be made that their smoke is negatively affecting the habitability of your own space.
"To the extent that a rent-stabilized tenant is being adversely affected by smoke odors permeating into his or her apartment, he or she might be able to claim breach of warranty of habitability, or, if truly egregious, a constructive eviction, which might entitle him or her to some sort of rent abatement," Shmulewitz says.
But rather than take the matter to court, perhaps you could try persuading your landlord to institute a more stringent smoking policy—or to make the building smoke-free. The Department of Health offers resources on doing so here.
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