A restaurant is blowing smoke from its kitchen into my window—is this legal?

By Virginia K. Smith | April 24, 2017 - 2:59PM

A restaurant's chimney is just below the window of my rental, and they use the fireplace from 8 am to midnight every day. As a result, I've developed asthma. They claim this is legal, but I was under the impression that chimney's had to be 15 feet above any adjacent structure. What can I do?

Whether or not the restaurant's chimney is illegally close to your window, it's a clear violation of city code for their smoke to be blowing into your windows.

"There are a number of restrictions with respect to exhaust termination [and outlet locations] in the New York City mechanical code," says mechanical engineer Matthew Bendix. "It is not permissible to discharge exhaust of any kind in such a way that causes a nuisance." And an apartment full of smoke—and burgeoning asthma issues—most certainly qualify as a nuisance.

As far as distance requirements, says Bendix, "I would say conservatively that the restaurant grease duct exhaust would need to be located at least 10 feet away from your window." However, the specific distance requirements laid out in the New York City Mechanical Code can vary depending on factors such as your apartment's proximity to the property line.

That said, you don't need to prove that this chimney or vent is inappropriately close in order to take action against the restaurant. The Mechanical Code specifically states that "every mechanical exhaust system shall be discharged outdoors at a point where it will not cause a nuisance," a rule the restaurant is clearly violating.

"Even if it's not within 10 feet of your window, the fact of the nuisance makes it enough for a 311 call," says Bendix.

As you would with other odor and pollution issues, your best bet is to start documenting the problems as they happen, regularly calling 311, and in this case, filling out a Citizen's Air Complaint Form, which among other things, includes options for submitting smoke complaints (and instructions on the best kind of documentation to submit as proof).

A restaurant downstairs might mean you have to put up with certain smells, but an apartment full of smoke is most definitely over the line.

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