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Manhattan Couple Sues Neighbor For $500K Over ‘Second Hand Smoke’


New Yorkers can’t smoke in restaurants, bars or at work — or inside their own apartments, apparently.

An Upper East Side cigar smoker said he’s done everything to appease the family next door that insists he’s generating so much secondhand smoke that it’s seeping into their apartment and making life a living hell.

Harry Dale takes most of his smoke breaks outside, uses three air cleaners in his third-floor co-op and even hired a specialist to try to seal off his apartment from that of Russell and Amanda Poses.

Dale, whose wife, Ann, suffered a stroke a few months ago, said he understands how upsetting secondhand smoke can be.

But when the couple decided to put their gripes in a Manhattan Supreme Court lawsuit, which they filed against the Dales last week, he had enough.

“Oh, you’re kidding me,” said Dale when told of the lawsuit. “This has been going on for a year. I thought we rectified it. The Poses are absolutely unreasonable.”

“He says his son has asthma,” Dale said of Russell Poses. “The amount of secondhand smoke that child has been exposed to from my cigars is minimal. The exhaust from the city buses is worse.”

The Poses family, who live in apartment 3A, claim the odors and smoke coming from 3G are so strong, they’ve been practically evicted from their two-bedroom co-op at 501 E. 79th St., a 20-story doorman building where apartments go for $2 million.

“It’s pungent enough that you can’t eat dinner. I’ve got two children, and I couldn’t let them in their own playroom,” said Russell Poses.

The city is considering a law that would ban smoking in public parks, beaches and plazas. While there’s no law against smoking inside an apartment, courts have ruled that secondhand smoke is a serious problem if it leeches into another apartment or impacts the neighbors, said John Churneftsky, the Poses’ lawyer.

“It constitutes a nuisance and a trespass, and when you have a nuisance or a trespass, the court will order that nuisance remedied,” Churneftsky said.

In 2006, a Manhattan judge ruled that secondhand smoke is a breach of the “warrant of habitability,” a provision of state law that says tenants are entitled to a “livable, safe and sanitary” apartment. Co-ops and apartment buildings can also choose to ban smoking throughout their buildings, including inside individual apartments.

After they complained for nearly a year, the Poseses said in court papers that the secondhand smoke seemed to subside for about one month last winter.

But it didn’t last long. The pair are accusing the Dales of “maliciously” and “spitefully” trying to smoke them out.

The family, including son Charles, 6, and daughter Addison, 3, has lost sleep and suffered headaches, chest pains, and respiratory ailments, and say they haven’t been able to use most of their rooms because the fumes are so bad.

The Wall Street equities trader and his wife, who runs her own gift-basket business, are asking for $500,000 in damages for each member of the family.

(Source: NY Post)



8 Responses

  1. countersuit? why a countersuit?! I can totally comisserate with them. I have a neighbor who smokes like a chimney & now that her husband has moved in with her there are two chimneys smoking here. Wow, they smoke outside because the lease doesn’t allow smoking in the apartment, all nice & dandy, however, they smoke right by my window. When I’ve asked them to smoke near the curb you want to know what their answer was? close your windows. Why do I have close my windows? Why do I need to suffer because of them? my kitchen & dining room smells like smoke most of the time and don’t get me started on when they cook their food & how it stinks. Yes, trief food stinks. If I could, I would totally sue them & my landlord but I don’t have time & patience for that.

  2. I am a tenant with a smoker residing in an apt underneath me. All attempts to stop him failed. I hope the couple wins the case. It would prove my point outright and I would take my case in court, too. Keep strong and don’t give up till you win!

  3. We have neighbors upstairs and downstairs who smoke. We can’t stand it!!!!!!!!!!!!!!

    And you “holy man” – if that picture really bothers you, then get off this web site. You’re not as holy as you think.

  4. Me thinks that maybe..just maybe this couple is getting some help from the anti tobbaco lobbyists.

    It would be interesting to see where the money for their legal fees is coming from.

    People need to stop with this anti smoking crusade and realize that you cant criminalize a behavior just because you happen to find it repulsive.

    And for the people who are on the anti smoking side, once “this” battle is won, maybe people will find one of your own habits “disgusting” So be careful who you hitch your wagon to.

    It is every Americans right to do as they please in their own personal autonomous space.

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