Does a tenant living in an private house w/2 other tenants have the right to tell them they cannot smoke on the porch?

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The building is a private house with three apartments (basement, 1st and 2nd floor). Two of the tenants have been living there since 2009 in bsmnt and 2nd floor. The other tenant just moved in in 2011 and started operating a licensed day care center. The entire time, the day care owner did not complain about the smoke until now. She put up no smoking signs everywhere including her window...no conversation with the landlord or other tenants. She claims her parents are complaining about the tenants smoking outside and she has to enforce the no smoking rule. The landlord ASKED the tenants to smoke away from the window as a courtesy. The tenants were fine with that until she became angry when they were on the porch smoking on the weekend when daycare is not in session. What are the rights?

Attorney Answer

1
Steven Smollens ·
Dear Brooklyn Tenant: Your neighbor may choose to say her point of view about smoking and where to smoke and you are equally free to ignore her. If all the tenants have leases ( and that is important) the landlord has a right to enforce lease clauses relating to nuisance or objectionable conduct. Whether the landlord feels compelled to do so may depend on the advocacy of the day care tenant and her attorney. If there are no leases the landlord may choose to end the dispute by terminating the month to month tenancies. New York law does not require a reason to end a month to month tenancy. The other concern is that there are three tenants, one in the basement and a business tenant on the first floor. Check the Certificate of Occupancy for the building and determine if the basement allows for residential use and the first floor allows for a business use.
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