| Court: | City of NY Civil Court |
| Facts: | Plaintiff owns a condo, and leased it to defendant. The neighbors smoke, and defendant's wift is allergic. They complain, to no avail, and then leave. |
| Posture: | Suit to recover rent. |
| Issue: | Should we grant a motion to dismiss on the theory that secondhand smoke does not breach an implied warranty of habitability to the extent that it's a constructive eviction? |
| Holding: | No. This is a triable issue of fact. Motion to dismiss denied. |
| Rule: | Secondhand smote can be the grounds for constructive eviction. |
| Reasoning: | Acts of third parties are within the landlord's responsibility, and the landlord took no action. So we have an issue of fact (i.e., how bad was the smoke) that must go to trial. |
| Dicta: | |