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Christian Ewen and Britt Ewen v. Federico Maccherone and Caterina International

May 26, 2011


Defendants appeal from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated December 1, 2009, which denied their motion to dismiss the complaint.

Per curiam.

Ewen v Maccherone

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on May 26, 2011

PRESENT: Shulman, J.P., Hunter, Jr., JJ

Order (Anil C. Singh, J.), dated December 1, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Since 2007, plaintiffs have been the owners and residents of a luxury condominium unit located at 200 Chambers Street in Manhattan, New York. Their condominium unit immediately adjoins the unit owned and occupied by their neighbors, the individual and corporate defendants. In 2009, plaintiffs commenced the instant action to recover damages for negligence and private nuisance against defendants, alleging that secondhand smoke from defendants' "excessive smoking" "seeped in" through the walls into plaintiffs' apartment, which condition was "exacerbated" by a building-wide ventilation or "odor migration" construction design problem. In fact, the complaint expressly stated that "[w]hile a smoking neighbor may be a mere annoyance under normal circumstances, due to the odor migration problem, secondhand smoke fills [plaintiffs'] kitchen, bedroom and living room, causing them to vacate their unit often at night" and resulting in personal injuries.

Prior to answering, defendants moved to dismiss plaintiffs' complaint, pursuant to CPLR 3211(a)(1), (7) and (10), on the grounds that the complaint failed to state a cause of action upon which relief could be granted, that the "documentary evidence shows that plaintiffs were prohibited from maintaining the action" because the condominium's declaration and by-laws do not prohibit smoking in the individual apartments, and that they failed to join the condominium as a necessary party to the action. Defendants also alleged that plaintiffs' allegations of an "odor migration" problem in the building caused by a construction design defect failed to state claims for private nuisance or negligence against an individual unit owner.

Plaintiff opposed the dismissal motion, arguing, inter alia, that smoking was not expressly permitted in individual units under the condominium rules, and that, even if it was determined that smoking was permitted, causes of action for nuisance and negligence were sufficiently pled. Civil Court agreed with plaintiffs, and denied the motion to dismiss in its entirety. We now reverse.

Although there are significant similarities between nuisance and negligence claims, they constitute separate causes of action (see Nussbaum v Lacopo, 27 NY2d 311, 315 [1970]). The elements of a cause of action for a private nuisance are: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977]; see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330, 334 [2010], affd as mod __NY3d__, 2011 NY Slip Op 02485 [2011]). However, "not every intrusion will constitute a nuisance. Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other... If one lives in the city he [or she] must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life'" (Nussbaum v Lacopo, 27 NY2d at 315, quoting Campbell v Seaman, 63 NY 568, 577 [1876]). The relevant question is whether a defendant's use of his or her property constitutes an unreasonable and "continuous invasion of [the plaintiff's property] rights" (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003]; see Golub v Simon, 28 AD3d 359, 360 [2006]; Rodriguez-Nunci v Clinton Hous. & Dev. Co., 241 AD2d 339, 340 [1997]).

Accepting plaintiffs' allegations as true, and according them the benefit of every favorable inference, as we must do on a motion to dismiss pursuant to CPLR 3211(a)(7) (see Zumpano v Quinn, 6 NY3d 666, 681 [2006]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that plaintiffs have failed to state a cause of action for private nuisance against their neighboring defendants. Defendants' conduct in smoking in the privacy of their own apartment was not so unreasonable in the circumstances presented as to justify the imposition of tort liability against them (see Rodriguez-Nunci v Clinton Hous. & Dev. Co., 241 AD2d at 340). Critically, defendants were not prohibited from smoking inside their apartment by any existing statute, condominium rule or bylaw. Nor was there any statute, rule or bylaw imposing upon defendants an obligation to ensure that their cigarette smoke did not drift into other residences.

Indeed, the law of private nuisance would be stretched beyond its breaking point if we were to allow a means of recovering damages when a neighbor merely smokes inside his or her own apartment in a multiple dwelling building. Since there cannot be a substantially unreasonable interference by smoking inside the apartment, there could not be a private nuisance, even if plaintiffs were to show that they had suffered some damage, annoyance and injury (see McCarty v Natural Carbonic Gas Co., 189 NY 40, 46-47 [1907]; Newgold v Childs Co., 148 App Div 153 [1911]). To the extent odors emanating from a smoker's apartment may generally be considered annoying and uncomfortable to reasonable or ordinary persons, they are but one of the annoyances one must endure in a multiple dwelling building (see generally Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d ...

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