Post-cancer surgery survivor living in smoked-filled apartment

[10ant]

What is the name of your state? NY

I moved into an apartment in a large complex at the beginning of the summer. Over the summer, I had cancer surgery.

My apartment is, without any exaggeration, completely inundated with second-hand cigarette smoke from the downstairs, chain smoking neighbors. There is an unending stream of smoke; in every part of my apartment it is overwhelming.

I wrote the management, explaining about my medical condition and the smoke. I asked if there could be something done; at least a compromise. They didn't reply back, so I contacted them after two months from when they received the letter.

I was told over the phone by someone at management that they informed the neighbors that I was bothered by the smoke, but that there was nothing else that they can do. This person suggested that I either talk to the neighbors, (which I do not want to do for concern over a potential conflict), or move out.

Although a seemingly simple suggestion; it took months to hunt for an apartment and finally find one through a realtor.

I have already developed symptoms from the smoke including difficulty in breathing, irritated throat and chest. I am frequently fatigued and very distraught over the possibility that this could bring back the cancer.

--10ant

[seniorjudge]

What is your legal question for us?

[10ant]

Originally Posted by seniorjudge

What is your legal question for us?

NY STATE warranty of habitability, in part, states that occupants shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.

Considering the conditions I mentioned, and adding that the EPA's official findings regarding second-hand cigarette smoke is a confirmed health risk containing "4000 chemical compounds"; is this a breach of the warranty of habitability?

Secondly, is the landlord potentially liable for the hazardous conditions and, if I am forced to move; what is the probability in recovering at least moving and realtor costs?

Thank you.

[moburkes]

No. They have the right to smoke in their homes. You should have inquired about smoke free buildings, or something like that.

Based on what you're saying, people wouldn't be able to have bonfires, cook on the grill, etc because you've had lung surgery.

[Zigner]

According to your description, this situation was present even prior to you moving in. If the smoke was so pervasive, why did you move in there?

[10ant]

Originally Posted by moburkes

No. They have the right to smoke in their homes. You should have inquired about smoke free buildings, or something like that.

I never said that don't have a basic right to do whatever they want in their apartment... But, if the neighbors were told that their behavior is causing a nuisance and a request was put in to reach a compromise (not "stop"/read my posts) -- that's a reasonable request.

The logic that they "have a right" to smoke as much as they want, anywhere in the apartment is the equivalent to me playing loud music all of the time in every room and then arguing that it's "my right". In that scenario, I would surely be asked to stop and, if I ignored the request, I would surely be evicted. They are similar because, in both situations, something is emanating from one apartment to another that is causing the receiver of the activity discomfort and stress.

The smoking is excessive; it's insane chain smoking. They want to kill themselves with it - I don't.. If they want to pump their veins full of drugs or swallow pills, their is no airborne by-product that affects me, and it is not of my concern.
I am not complaining because I am trying to ruin their fun.


moburkes

Based on what you're saying, people wouldn't be able to have bonfires, cook on the grill, etc because you've had lung surgery.

You can't cook on a grill/or have bonfires in an apartment unit; besides the obvious fire hazard; the fumes would be overwhelming.

[moburkes]

What compromise could they make? To not smoke in their own home? It is not illegal to do so.


By the way, nowhere did I mention, in those examples, that I meant INSIDE a unit.

Your neighbor's have the right to smoke outside as well, as long as it is not illegal.

Hey - I HATE smoke. I'm allergic to it. And, while my state has many laws against smoking in certain areas, they're in their own home, for crying out loud.

[10ant]

Originally Posted by Zigner

According to your description, this situation was present even prior to you moving in. If the smoke was so pervasive, why did you move in there?

I met the real estate agent. She walked me around the apartment, It didn't take long to see that the apartment was in good shape. I had been looking for months. it was the best I had seen by a long shot.
We didn't just stand there any gawk at the kitchen fixtures... I got the gist that it was a nice place. We did talk - but we didn't stay in the apartment and talk.

I didn't smell any smoke. I didn't think of asking - because I didn't consider it as a possibility. (My condition is not lung-related, the second-hand smoke is harmful either way.)

From the way I can hear the downstairs neighbors, it is clear that there is no insulation between their apartment and mine. If there was, I'm sure it would absorb most of the smoke.

[cymbol]

This came out in the news a week after the post. Some interesting reading, is all.

[url]http://www.usatoday.com/news/health/2007-10-03-smoking-bans_N.htm[/url]

I am far from a legal anything, but isn't this similar to noise pollution? Sure it is their home and they can make any noise they want, provided they don't produce an unreasonable amount of noise that harm the health of neighbors? Sure they can smoke all they want, it is in their homes, but they need proper ventilation to prevent aforementioned from happening?

Maybe your local environmental health office has more to say on this matter; talking to them can't hurt.