Q. We need help with this dilemma. Our co-op’s public areas are all non-smoking – but what about the shareholders who share a terrace? Out of 82 terraces, 12 share their terraces with neighbors, some of whom smoke. It is a big problem for the non-smokers. Is there a New York State law that prohibits smoking on shared terraces? If not, is there anything we can do as a board?
—Non-Smoking Board Member
A. “The New York City Smoke Free Air Act,” says attorney Dennis Greenstein of the New York firm of Seyfarth Shaw, “prohibits smoking (and the use of e-cigarettes, for that matter) in virtually all enclosed areas within public places and in certain outdoor areas of public places. New York State provides similar, though less comprehensive, restrictions on smoking as part of the Clean Indoor Air Act, as amended.
“Under The New York City Smoke Free Air Act (the ‘Act’), common areas—such as common hallways, lobbies, laundry rooms, elevators, mailrooms, meeting rooms and fitness rooms of a multiple dwelling containing 10 or more dwelling units—are ‘public places.’ It appears that the letter writer’s question involves unenclosed outdoor private spaces that do not fall within the Act’s smoking prohibition nor any other state or city laws.
“Notwithstanding the above, most co-op proprietary leases provide that lessees (the shareholders) and their guests and other persons present in their apartments may not cause or permit a nuisance and/or objectionable odors. Smoke entering another apartment or common area could be a basis for declaring a breach of this requirement of the proprietary lease. The co-op board could serve a notice demanding that the shareholder causing or permitting the smoke condition cure the breach and advise that failing to do so could result in the board seeking the termination of the proprietary lease (and possible eviction) on the basis of this breach. Moreover, if the lessee has been sent repeated written notices stating that smoke emanating from their unit or other private spaces continues to enter other apartments and common areas, the board may be able to seek the termination of the lease based upon this objectionable conduct.