Legal Question in Real Estate Law in New York

toddler diagnosed with asthma; landlord smokes

We are living above our landlord, who smokes. We have a 20 month old daughter and so asked him, when we moved in 4 months ago if the smoke would get into our apartment at all. He said it would not and yet it does. He claims he has sealed up his door and any areas of the ceiling where smoke could seep through, yet he often leaves his door open and of course the smoke from his apartment flows out. Our daughter was just diagnosed with asthma and her allergist thinks the smoke may have triggered it.We talked to our landlord about our daughter's asthma and at first he seemed understanding but then continued allowing smoke to come in the hallway and turned off the air filter put in the hallway. Our lease has a habitability clause. We can get doctor's notes to break the lease.I'm afraid he won't refund our security. What legal rights do we have?


Asked on 5/05/08, 10:26 pm

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Re: toddler diagnosed with asthma; landlord smokes

You have to give the landlord formal notice under the terms of the lease. The notice should state how he is breaching the Warranty of Habitability, the reason why it is causing damage to your family, and a time frame to rectify the situation. The notice must be served under the terms of the lease agreement (personal delivery or certified mail).

After formal notice, if the problem persists, leave the premises. You may be able to commence an action for damages based on his breach of the warranty.

Mike.

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Answered on 5/06/08, 1:01 pm


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