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Unit Owner Sufficiently Alleged Nuisance Claim Against Neighbor For Secondhand Smoke

December 9, 2009

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In <i>Ewen v. Maccherone</i>, the plaintiff sued his neighbor claiming negligence and nuisance based on a claim that the cigarette smoke from the neighbor’s apartment had an objectionable odor that invaded his apartment and caused health problems for his infant daughter. The defendant filed a pre-answer motion to dismiss on the grounds that the plaintiff's complaint failed to state a cause of action for nuisance or negligence. The court denied the defendant’s motion, holding that he failed to establish a conclusive defense as a matter of law. Specifically, the court found that the plaintiff's allegation that the secondhand smoke interfered with his "rights, comforts and conveniences" as an apartment owner was enough to establish a claim of nuisance. Further, the court held that the plaintiff's allegation that his daughter became ill and he was forced to evacuate his apartment several times as a result of the smoke was sufficient to establish a claim of negligence.
Thanks to Ed Lomena for his contribution to this post.
<a href="http://www.courts.state.ny.us/reporter/3dseries/2009/2009_52428.htm">http://www.courts.state.ny.us/reporter/3dseries/2009/2009_52428.htm</a>

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