After complaining multiple times to his neighbor and landlord, a tenant sued his neighbor for secondhand smoke drifting into his apartment. The court noted that although the state law regulating smoking exempts private residences, the tenant could recover under the theory that his neighbor’s smoking created a nuisance. The court found in favor of the tenant, ruling that the neighbor’s smoking created a private nuisance. The court awarded the tenant $335.13 in damages to cover the cost of an air filter but denied the tenant’s requests for medical expenses and reimbursement for increased power consumption because of insufficient evidence.
Duntley v. Barr, 805 N.Y.S.2d 503 (N.Y. Dist. Ct., 2005).
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
A claim of a violation of a tobacco control law or statute.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Plaintiff/claimant's recovery, if any, therefore must lie under the theory that the defendant herein
created a private nuisance for which she is liable, either intentionally or negligently. A nuisance is a
harm, injury, inconvenience or annoyance, and as compared to a public nuisance, a private nuisance
threatens one person or a relative few. (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564,
568 [1977], citing McFarlane v City of Niagara Falls, 247 NY 340, 344 [1928].) An essential feature of a
private nuisance is an interference with the use and enjoyment of the premises. It is actionable by the
individual person or persons whose rights have been disturbed. (Id.; see, also, Zimmerman v Carmack,
292 AD2d 601 [2002].) In the strikingly similar case of Paul v 370 Lex, L.L.C. (7 Misc 3d 747 [Sup Ct, NY County 2005]), the plaintiff therein sought recovery, inter alia, when all rooms in the plaintiff's office were adversely
affected by the infiltration of the secondhand smoke from an adjoining office suite. As in the case at bar,
the plaintiff in Paul (id. at 748) complained many times, both orally and in writing to both the adjoining
tenant and the landlord. Further, just as in the case at bar, the lease in Paul provided that the respective
tenants would not use the premises "in a manner which would be offensive or objectionable to other
building occupants . . . , or in any way interfere with other building tenants." (Id. at 749.) As in Paul v 370 Lex, L.L.C. (id.), wherein the court held that the adjoining tenant may be liable to the plaintiff for a private nuisance, this court hereby finds that the plaintiff/claimant herein has established his cause of action, against defendant, for private nuisance, created by the defendant through her actions of smoking, for which she is now liable for damages sustained by the plaintiff/claimant. More specifically, this court finds that paragraph 24 of the defendant's lease agreement (defendant's exhibit A) specifically provided, inter alia, that the defendant would not "do or permit anything that will interfere with the rights, comforts or conveniences of other Tenants." That, in fact, by defendant's own testimony, she admitted to smoking in her apartment, a fact that she further admitted to Officer James Gallup of the Town of Manlius Police Department, to which he testified."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
After complaining multiple times to his neighbor and landlord, a tenant sued his neighbor for secondhand smoke drifting into his apartment. The court noted that although the state law regulating smoking exempts private residences, the tenant could recover under the theory that his neighbor’s smoking created a nuisance. The court found in favor of the tenant, ruling that the neighbor’s smoking created a private nuisance. The court awarded the tenant $335.13 in damages to cover the cost of an air filter but denied the tenant’s requests for medical expenses and reimbursement for increased power consumption because of insufficient evidence.