Duntley v. Barr

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).

  • United States
  • Sep 22, 2005
  • City Court, City of Syracuse
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Parties

Plaintiff Edgar Duntley

Defendant Marion Barr

Legislation Cited

New York State Public Health Law, Article 13-E

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"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."