Petitioner issued a rent demand dated October 13, 2014, seeking $5,856.78 in arrears,

Respondent appeared by counsel, and filed an answer and counterclaims on January 9, 2015. The answer asserts six affirmative defenses and two counterclaims, including improper service, breach of warranty of habitability, and that the rent sought was not the legal rent.

The proceeding was initially returnable January 16, 2015. On March 19, 2015, Respondent agreed to waive defenses related to improper service.

On June 3, 2015, the proceeding was assigned to the Expediter's Part for assignment to a trial part. On June 23, 2015, the proceeding was assigned to Part R for trial. Certain documents were marked into evidence and Respondent stipulated to Petitioner's prima facie case. The proceeding was adjourned to July 16, 2015.

On July 6, 2015, Petitioner made an ex parte application, by submission of an order to show cause, seeking leave to conduct discovery and a stay of the proceedings. The court declined to sign the order to show cause.

On July 16, 2015, the trial continued and concluded, and the court reserved decision.

FINDINGS OF FACT

Petitioner is the owner of the Subject Building pursuant to a deed dated April 22, 1997 (Ex 3). Respondent is the rent-stabilized tenant of record of the Subject Premises, pursuant to a lease dated August 30, 1991(Ex 4). That lease was renewed in June 2013, for a one year period, through August 31, 2014, at a legal rent of $846.17, and a preferential rent of $818.56 (Ex 5). The most recent renewal, dated May 2, 2014, is for a two year period through August 31, 2016, at a preferential rent of $881.99 (Ex 7). As of March 2014, Respondent had a zero balance, and since that date Respondent has paid a total of $881.99 in arrears (Ex 6). The petition was amended at trial to include all rent due July 2015, on consent.^[FN1] The parties stipulated that there is $12,912.70 in unpaid rent through July 2015.

There is a valid MDR on file with HPD (Ex 1). The legal registered rent for the Subject Premises as of July 28, 2014, is $846.17 per month (Ex 2).

Paul Scardino (Scardino) was called as an expert witness by Respondent. Scardino is a certified Indoor Environmental Consultant. Scardino visited the Subject Premises, on two occasions, in April and May of 2014, both after 6pm in the evening. In April, Scardino was at the Subject Premises for one half hour and detected no evidence of cigarette smoke. Because Scardino could not even smell any Cigarette Smoke in the Subject Premises, he determined that no further testing was warranted ion that date. Scardino returned on May 16, 2014, and he detected what he termed "moderate levels" of smoke odors. The windows in the Subject Premises had been closed for over 24 hours prior to this visit. Scardino used a MetOne laser particle counter to measure levels of respirable sized particles in the Subject Premises. There were elevated levels of respirable sized particles, which Scardino concluded might indicate the presence of second hand smoke. Sacrdino testified that there was no way to tell based on the test he conducted whether there was any infiltration of second hand smoke, and that the test necessary to determine same, was not conducted, because Respondent did not want to pay for the test. The test would cost $175 per sample, with a recommendation that three samples be taken, [*2]in addition to a professional fee of $275. This information is included in the report submitted by Scardino (Ex B).

Respondent told Scardino he is allergic to cigarette smoke (Ex B) and reported experiencing allergy like symptoms when he smelled the smoke.

Scardino indicated that his inspection was limited and therefore did not consider all the factors that may adversely affect air quality, such as mold bacteria and other allergens. Scardino recommended that an exhaust ventilation be used in the smoker's apartment, or that potential routes of air infiltration between the two apartments be sealed. No testimony was elicited by either party regarding these recommendations, but they are in Scardino's report.

Scardino stated that if, after the implementation of these measures, Respondent continued to experience allergic symptoms, additional testing to determine the cause, for mold and other allergens would be necessary.

Scardino has only been in this profession for seven years, works under another professional with more advanced credentials and has only testified on one prior occasion as an expert.

Respondent also testified . Respondent has lived in the Subject Premises for over 16 years. The Subject Premises is a one bedroom apartment. Respondent testified that from late December 2013 cigarette smoke started to be a real problem in the Subject Premises. Respondent testified that when he smells cigarette smoke, his throat gets scratchy and his eyes get watery. Respondent is an actor and he does voice overs.

Respondent testified that from January 2014 through June 2014, there were between six and eight days per month that he smelled cigarette smoke in the Subject Premises. Respondent testified that the odor was primarily discernible in his bedroom. Respondent stated that when he smells cigarette smoke he usually leaves the Subject Premises.

Respondent testified that since December 29, 2013, he has not slept in the Subject Premises, because he can not be there on nights and weekends, because that is when his neighbor is home and smokes. The court did not find this claim credible. Respondent did later acknowledge that there were occasional times that he slept at the Subject Premises, or was there on a weekend. Respondent stated at first he stayed in hotels, and now he stays with family and friends. Respondent testified that he travels to Boston every weekend to escape the smoke, but later acknowledged that he would travel there one or two weekends a month anyway, to visit his eighty-six year old father.

Contradicting his earlier testimony about the number of days per month he smelled cigarette smoke, Respondent later testified that the smoke is there every night all night until three or four am, and all weekend long.

Respondent initially testified that he started staying in hotels in January 2014 and stopped in 2015, when he ran out of money. Respondent testified he submitted bills for every instance in which he stayed in a hotel. The bills, many of which were submitted in duplicate or triplicate, for the same stay, show a total of nine stays, all in the Spring and Summer of 2014. The court finds that these bills appear to demonstrate leisure outings more than substituted housing, and that the stays, seem to be for weekend get-a-ways. For example, from March 27 to March 31, 2014, Respondent booked a room with a king size bed, for two guests, at the Mariott in Tarrytown, New York (Ex K-4, K-13 and K-14). Respondent stayed at two other hotels in Tarrytown during the week on June 1 (Ex K-10), and on June 7 and 8 (Ex K-2,K-9) and again August 22 to 25 (Ex K-5). Respondent also spent three weekends upstate in Fishkill, New [*3]York, over sixty miles north of Manhattan, April 18-21 (Ex K-12, K-1), June 27 to June 30 (K-8) and July 30 to August 2 (Ex K-7).

Petitioner called Kenneth Friedman (Friedman), as its expert witness. Friedman is an environmental consultant and an expert in evaluation of air quality. Friedman has never been to the Subject Premises, but reviewed the report submitted by Respondent's expert. Friedman emphasized, what Scardino had acknowledged: that the test conducted was of limited value as pertaining to Respondent's claim, because it could not determine that the air particles found were from cigarette smoke; that there are literally thousands of substances that could be the cause; that there are specific tests, which could have confirmed the presence of nicotine and second hand smoke infiltration in the Subject Premises, but Respondent's expert had not conducted those tests.

Friedman further testified that, in his opinion, the elevated particle levels found by Respondent's expert were not from cigarette smoke, based on the size of some related particles, and that the cause was more likely any one of thousands of allergens such as skin, dust or pollen.

Friedman testified that the device used by Scardino to test particle levels was not designed to evaluate indoor air quality, and while reliable in some instances, was not an appropriate manner to determine the presence of cigarette smoke. Friedman also testified credibly that assumptions made by Scardino, regarding the difference in particle levels indoors and outdoors, in inferring that there could be second hand smoke in the Subject Premises, were incorrect.

Both Friedman and Scardino agreed that there are no safe levels of exposure to second hand smoke.

Kelly Powell (Powell), the tenant in the apartment above the Subject Premises and the alleged source of the second hand smoke testified for Petitioner. The court found Powell to be a very credible witness. Powell moved into the subject building in the Summer of 2007. Powell had never met Respondent and had never spoken with him. Powell is an architect and her typical work hours are 8:30 am to 7:30 pm, Monday through Friday. Powell typically leaves for work at 7:30 am and returns to her apartment by 8 pm during the work week. Petitioner had advised Powell of Respondent's complaints regarding cigarette smoke. Respondent states she typically smokes two cigarettes after returning home from work in the evening, between 8pm and 11:30 pm or 12 when she goes to sleep.

Since Powell learned of Respondent's complaints she keeps the windows open in her apartment when she smokes, and she bought an air purifier and an exhaust fan to expel the smoke. Respondent usually smokes in the kitchen, next to the open window. On the weekends if Respondent is home all day she may smoke a total of four cigarettes in the Subject Premises, but often. she runs errands and is out for much of the day.

Powell received a letter, which she assumes was from Respondent, approximately a year prior to the trial, which she found disturbing. Powell did not keep the letter.

Petitioner inspected Powell's apartment within the last year, and took photos to confirm that Powell had complied with Petitioner's request to install the exhaust fan and the air purifier.

The next witness for Petitioner was Rusmir Kolenovic (Super), the Super for the building. The Super has been employed by Petitioner for six years and was last in the Subject Premises about one year prior to the trial. On that occasion, the Super had gone to the Subject Premises to address Respondent's complaints regarding second hand smoke infiltration. The [*4]Super sealed all cracks in the ceiling or elsewhere, which could allow for smoke to come through. The Super did not observe any indication of smoke coming into the Subject Premises. The Super also went into Powell's apartment and confirmed that it did not smell of smoke or like the apartment of a smoker.

Petitioner took a number of steps to investigate and address Respondent's allegation. Petitioner issued letters to all residents setting forth obligations regarding smoking, including that smoking was prohibited in any common areas, and that smokers must ventilate (see eg Ex H and Ex G). Petitioner conducted its own investigation which failed to disclose any evidence of smoke infiltration of areas around Powell's apartment and interviewing other residents to see if there were any other complaints, including the residents of apartments 1B, 1D, 2B, 2C and 2D. Petitioner also sealed the front door of the Subject Premises.

DISCUSSION

The main issue at trial was Respondent's request for a rent abatement based on the allegation that cigarette smoke from Powell's apartment seeps into the Subject Premises and that same constitutes a breach of warranty of habitability.

The court finds that Respondent failed to establish a breach of the warranty of habitability by a preponderance of credible evidence.

New York Real Property Law §235-b provides for an implied warranty of habitability. Landlords of residential premises are required to keep the premises "fit for human habitation" and free of conditions that are dangerous, to the life, health or safety of the tenants ( Park West Management Corp. v. Mitchell, 47 NY2d 316 at 327).

There is legal authority to support the claim that the presence of secondhand smoke can be the basis for a breach of warranty of habitability and /or constructive eviction [Poyck v Bryant 13 Misc 3d 699; Upper East Lease Associates LLC v Cannon 37 Misc 3d 136(A); Reinhard v Connaught Tower Corp 2011 Ny Slip Op 33101(U)].

In such cases, the court must evaluate whether the second hand smoke was so pervasive as to actually constitute a breach. To establish a breach of the warranty of habitability, Respondent has a burden of establishing that a condition exists.

In this case, the court credits Powell's testimony that she is an occasional smoker having no more then one or two cigarettes a day during the week while in the Subject Premises. The court does not find Respondent's testimony regarding the amount of alleged smoking to be reliable. The court notes Respondent's testimony was contradictory in this regard and that he initially testified that he only experienced a smell of smoke on average six or seven days out of a month.

Moreover, both experts, who testified at trial, acknowledged that it could not be confirmed with any certainty that Respondent's symptoms were from second hand smoke or even that any second hand smoke had infiltrated the Subject Premises. Both experts also agreed that there were inexpensive tests available which could have determined with certainty whether any second hand smoke had infiltrated the Subject Premises, but that Respondent declined to have such testing done.

Respondent's symptoms of a scratchy throat and watery eyes are clearly an allergic reaction to something, but as noted by both experts, the reaction could be to any one of thousands of allergens and may indeed have no relationship to the alleged second hand smoke.

The court finds that Petitioner took reasonable steps to investigate Respondent's claim and have Powell take steps to reduce any alleged infiltration of smoke.

Based on the foregoing, the court concludes that Respondent failed to establish a condition existed in the Subject Premises that constituted a breach of the warranty of habitability.

Petitioner is awarded a final judgment of money and possession in the amount of $12,912.70. Issuance of the warrant is stayed through July 28, 2015 for payment.

This constitutes the decision and order of the Court.^[FN2]

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