As we all know, in recent years, more and more areas—from public transportation to office buildings to parks—have been declared “smoke-free.” As far as smoking goes, though, is one’s home still one’s castle? Can you be the Marlboro man or woman in the confines of your own residence? A recent decision by the Appellate Term, First Department in Ewen v. Maccherone1 addressed the issue of whether an apartment owner can be sued by his neighbor for secondhand smoke damage.
In Ewen, the plaintiffs, described as “the owners and residents of a luxury condominium unit,” sued the individual occupant and corporate owner of the adjacent unit for negligence and private nuisance. They alleged that defendant Federico Maccherone and his guests smoked cigarettes in his unit and that secondhand smoke had “seeped in” through the walls into their apartment. They asserted that this condition was exacerbated by a “building-wide ventilation or ‘odor migration’ construction design problem.” The complaint alleged that secondhand smoke filled the plaintiffs’ kitchen, bedroom and living room, with the result that they often vacated their unit at night and had personal injuries.
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