One increasingly common landlord technique used to gather evidence against tenants is a camera in the hallway that records the comings and goings from a specific apartment. Sometimes these cameras are installed in plain view; sometimes they are disguised as smoke detectors or hidden in exit signs or elevator call buttons. Video from the camera can be used by the landlord in court to prove that a tenant is not occupying the apartment as her primary residence or that a family member claiming succession rights hasn’t really been living there. They can also been used to show that the tenant has been subletting or renting the apartment out to transients through AirBnB or similar service.
But are they legal? The short answer is, unfortunately, yes. New York does not have any statutory or common law general right to privacy. The Civil Rights Law protects privacy only for unauthorized use of a person’s image in advertising. Civ. Rights Law §§50 & 51. The Penal Law makes unauthorized surveillance a crime but only if there is a “reasonable expectation of privacy.” Penal Law §250.45. And that’s the rub. Courts have ruled that there is no reasonable expectation of privacy in a common hallway, or even in your apartment when the door is open. Thus, at least one court has ruled that a camera that peers directly into an apartment when the door is open is not an invasion of privacy. Otero v. Houston Street Owners Corp., 2012 NY Slip Op 30440(U) (Sup.Ct. NY Co.).
The Otero court did recognize that a tenant might have a cause of action against a landlord for the obscure common-law claim of prima facie tort. That, however, is a very difficult claim to prove. Among other things, a tenant would have to show the landlord’s sole intent in installing a camera was to inflict harm and that there was no justification or excuse. In most cases, however, as long as the landlord has a reasonable basis to suspect the tenant does not occupy the apartment or is subletting or committing another lease violation — even if it turns out to be wrong — it will have a justification for the camera.
The lesson here is that tenants who are vulnerable to a primary residence, unauthorized subletting or other claim should be aware that they might be on Candid Camera.
