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Secondhand smoke from super's wife

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Q.  My super's wife smokes by her living room window, and the smoke goes up the airshaft and into my kitchen if my window is open.  I need the fresh air when I cook (also it gets pretty hot in the winter when the heat's on)  so keeping my window closed all the time is not an option.  

So far, I've only spoken to the super, whose response was that he wished his wife would stop smoking too.  What else can I do? Aren't I entitled to be able to open my window without breathing in her smoke?

A.  Our BrickTank experts recommend that you first follow the proper channels of neighbor-to-neighbor diplomacy by speaking directly to your super’s wife.

“See if she was even aware of the problem and ask her for input about any potential solutions,” suggests Elena Bayrock, the director of the Safe Horizon Manhattan Mediation Center—a local non-profit organization that mediates neighbor-on-neighbor disputes for free.

Don’t be judgmental—just specify that you’ve tried keeping your window closed, and why it didn’t work.

“Then, consider options together and be creative,” says Bayrock.  “Could she smoke elsewhere?  Would it be possible to develop a coordinated schedule for when you’d like the window open and when you could close it for her to smoke?”

Roberta Axelrod, who sits on 10 New York City-area co-op and condo boards as a sponsor’s representative for Time Equities, described a similar situation resolved when the smoker agreed to keep the windows closed while smoking, and the neighbor agreed to buy an air purifier for the smoker’s apartment.

If you can’t come to terms, you should notify your board in writing and demand that necessary steps be taken to fix the situation, says BrickTank expert  and real estate lawyer Jeffrey Reich of Wolf Haldenstein Adler Freeman & Herz.  

“Depending on the volume and frequency of the smoke intrusions, secondhand smoke could be deemed a health hazard,” says Reich. “A board might have an obligation to correct the situation.”

Paul Gottsegen, president of Halstead Management, says that the building should force your neighbor to keep her windows closed and buy one or two high-powered air purifiers.

There is one caveat, however.

“Because we are dealing with a family member of the superintendent, the board probably has less of an ability to deal with the problem than if the smoker was a shareholder,” says Eric Goidel, a real estate lawyer with Borah Goldstein Altschuler Nahins & Goidel.

“The superintendent was likely given the apartment as an incident of employment, and therefore is not subject to the proprietary lease” of a co-op, says Goidel.

A non-union super could be fired if he can’t get his wife to cooperate, he notes, but more likely your super is union.

“Absent a violation of the collective bargaining agreement, he cannot be touched,” says Goidel.

A better option, he says, is that “the board try to mediate the process by bringing the superintendent, his wife and the complaining shareholders to a meeting so they can air their grievances and hopefully clear the smoke.”

Related links:

Tribeca condo owner sues over secondhand smoke

Tribeca secondhand smoke suit now online

Why potheads make better neighbors

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