[maggie81]

I would appreciate if anyone could advise whether smoking in a co-op is legal and what can be done about it.

Here's the problem: I'm an owner of a NYC co-op and I have a neighbor living 2 floors above me who constantly smokes out of his window. The smoke comes into my apartment, even when my windows are closed. He also throws cigarette butts (often lit) out of his window. Many land on the outside of my windowsill and also on top of my air conditioner. I'm very afraid these lit butts might cause a fire in my apartment. There are also a ton of old cigarette butts, as well as cigarette packs lying directly beneath my windows by the first floor windows (I live on the second floor).

I have tried talking to the neighbor numerous times over the last couple of years. While the neighbor refuses to discuss the situation, his wife admits that he's a heavy smoker and keeps promising that she will ask him to stop smoking above my apartment and throwing cigarettes onto my property. However, nothing ever changes. I have also reported the problem to the superintendent, who informed me that he cannot do anything unless the management of the co-op is aware of the problem. So, I called the co-op management (I emphasized that there's a potential fire hazard) and was promised that the problem would be checked out and I would be informed of the result. However, it has been a while and nothing has been done.

This problem has been going on for several years and I'm not sure what to do. Do I hire a lawyer so the co-op takes me seriously? Do I call the police?

Thanks for your help!

[excon]

Do I hire a lawyer so the co-op takes me seriously? Do I call the police?

Hello maggie:

You don't do either of those things. Because, the cops won't do anything unless what he's doing is a crime, and you can't sue him or the co-op unless they've violated your rights.

So, the FIRST thing to do, is find out if he committed a crime or violated your rights.

I think we can eliminate the CRIME part of the equation, cause I'm pretty sure there isn't a law that would prevent him from smoking OUTSIDE his apartment... Unless, of course, you can find one.

The next thing you'll need to determine is whether smoking outside and dropping his butts on YOUR property, is a violation of your rights. It MIGHT be. I don't know whether it's just a mess or a hazard. You'll have to tell me.

However, I'll bet it's nothing more than a mess...

Certainly, you're not entitled to clean air. If you were, you could sue someone for passing gas.

You'll also have to read the CC&R's about your co-op to see if you can find any other violation that HE'S doing. If you can, then of course, you can seek a remedy...

But, my guess again, is that smoking outside is NOT a violation...

Next, you can become a member of the board for your co-op, CHANGE the rules about smoking, and make them retroactive. That'll work.

But, without a clear violation on HIS part, you're not going to get any help from the cops, your board, or a lawyer.

excon