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Where There's Smoke, There's Ire

May a condominium unit-owner maintain a suit against another unit-owner whose smoke is disturbing to the first unit-owner, without naming the condominium as a party to the action? That was the question in Ewen v. Maccherone.

The action was started by Christian and Brett Ewen, who own and live in Unit 7C at 200 Chambers Street in New York. Defendant Caterina International, Ltd. owns adjacent Unit 7D. Defendant Federico Maccherone resides in Unit 7D.

Ewen began this action claiming that Maccherone and his guests smoked cigarettes and that the second hand smoke was invading their apartment. The problem was exacerbated by construction and design defects in the building which cause odors, dust and fumes to migrate throughout the building. Ewen sought damages of $25,000.

Caterina and Maccherone made a motion to dismiss the complaint. They argued that the action was precluded by the bylaws and rules and regulations of the condominium, that the complaint failed to state a cause of action, and that the action could not proceed as the condominium had not been named a party.

The condominium’s rules and regulations stated: “No unit-owner shall make or permit any disturbing or objectionable noises, odors or activity in the Building, or do or permit anything to be done therein, which will interfere with the rights, comforts or conveniences of other Units or their tenants or occupants.” The rules and regulations specifically prohibited smoking in the playroom or the health club. Maccherone argued that because the rules prohibited smoking in just two areas, it followed that he could not be prevented from smoking in his apartment. Accordingly, he argued that the complaint should have been dismissed. Maccherone also argued that only the condominium or its board of managers had the right to initiate an action for an alleged breach of the condominium rules.

The court reviewed the condominium’s bylaws concerning remedies for violations of the bylaws or rules and regulations. The bylaws stated that if a unit-owner violated the rules and regulations or breached the bylaws, the board had the right to enter the unit and remove the violation, start legal proceedings or levy fines and penalties as the board deemed appropriate.

The court also noted that the bylaws gave the sponsor the right to enforce certain bylaws and rules and regulations. The court noted that the bylaws and rules and regulations were silent on the issue of whether smoking was permitted or prohibited in individual units. On the other hand, the court explained, the rules and regulations clearly stated that unit-owners were not allowed to permit objectionable odors to interfere with the “rights, comforts and conveniences” of other owners, tenants or occupants. This language implied that smoking was not allowed in individual units if secondhand smoke invaded other units. Accordingly, the court determined that documentary evidence – the rules and regulations and bylaws – did not conclusively establish a defense as a matter of law.

Defendants also argued that the condominium board had the exclusive right to address an alleged breach of the condominium rules. However, the documents did not state that the board had the sole and exclusive right to start an action. Nor did the documents expressly prohibit an owner, tenant, or occupant of a unit from beginning a nuisance action against another owner.

Defendants next argued that the action should have been dismissed for failure to state a cause of action for negligence and nuisance. They argued that all of Ewen’s allegations related to, and should have been determined by, the condominium’s rules and regulations, which permitted smoking in all areas of the condominium other than the playroom and health club. They contended that the “mere annoyance” of a smoking neighbor did not rise to the level of negligence or nuisance, especially since it was permitted by the condominium rules.

The court addressed the elements of a private nuisance cause of action. Plaintiffs must have alleged an interference substantial in nature, intentional in origin and unreasonable in character, with a person’s property right to use and enjoy land caused by another’s conduct in acting or failing to act.

The court discussed that there were no reported cases of a residential condominium unit-owner instituting a nuisance action against the owner of an adjoining unit because of secondhand smoke. However, there was a nuisance action started in another court by a commercial tenant against an adjoining tenant as a result of secondhand smoke. In addition, other cases determined that odors emanating from a tenant’s premises may have constituted a nuisance that warranted an eviction. Finally, the court noted that one case held that secondhand smoke may have given rise to a claim of breach of the warranty of habitability based on a constructive eviction. After reviewing the law, the court found that the facts set forth in the complaint were sufficient to state all of the elements of a cause of action for nuisance.

The court then reviewed the elements of negligence. To maintain a negligence cause of action, the plaintiff was required to prove the existence of a duty and a breach of that duty and then that the breach was the cause of injuries to plaintiff. The verified complaint alleged that engineering reports regarding the odor migration problem were sent to all unit-owners, so that defendants were aware of the problem. Plaintiffs claimed that, under the condominium’s bylaws, the defendants were duty bound not to engage in any activity that would have interfered with the “rights, comforts or conveniences” of other unit-owners. The complaint alleged that by allowing Maccherone and his guests to smoke in Unit 7D, Caterina permitted disturbing and objectionable odors and activities in the building and permitted actions that interfered with the rights, comforts, and conveniences of plaintiffs. Further, plaintiffs alleged that, as a result of secondhand smoke, as exacerbated by the odor migration problem, and as a result of Caterina’s failure to comply with the bylaws, they were forced to vacate their apartment repeatedly. Finally, plaintiffs alleged that the smoke caused their daughter to become ill and that they incurred medical costs in treating her.

As the court was required to accept the allegations of the complaint as true and afford plaintiffs the benefit of every favorable inference, it determined that the specific facts alleged in the complaint were sufficient to make out all of the elements of a cause of action sounding in negligence.

Defendants also claimed that the action should have been dismissed because plaintiffs failed to name the 200 Chambers Street Condominium or its board of managers as defendants in the action. According to the defendants, the bylaws were clear that the condominium association and board of managers were necessary parties to any litigation concerning the building, construction defects, the condominium rules, and enforcement of the rules.

The court found this contention without merit. First, neither the bylaws nor the rules and regulations stated that the board nor the condominium possessed the exclusive right to institute legal proceedings to abate a nuisance. In addition, the court determined that the rules themselves stated that unit-owners were responsible for enforcing the rules.

The complaint named the owner of the adjacent unit and its occupant. The court found that defendants had not offered a persuasive reason as to why the board of managers and condominium association were required to be parties. The court thus denied defendants’ motion to dismiss the complaint in all respects.


Comment: One of the issues which all condominiums (and cooperatives) face is whether to become involved in what is essentially a dispute between neighbors, whether it concerns smoke, other odors, decoration of a shared common space or noise complaints. The decision makes it clear that a unit-owner has the right to enforce a condominium’s bylaws and rules and regulations as against another unit-owner, even if the condominium (or its board of managers) is not a party to the action. The court did not discuss whether the plaintiffs had, prior to the action, complained to the board or the defendants, or whether anyone demanded that the sponsor correct what were apparently construction and design defects.

Although we can anticipate that the defendants will seek to name the sponsor and possibly the board in a third-party action, this ruling stands for the proposition that a unit-owner can seek relief against another unit-owner directly without naming the board as a party. The court does not analyze the issue; however, the decision is clear that the condominium’s bylaws and rules and regulations form a contract not only between the condominium and its unit-owners, but also forms a contract between each unit-owner.

Finally, the court confirmed that unit-owners may have causes of action for negligence and nuisance, independent of any claims concerning a violation of the condominium’s governing documents.


For Plaintiff: Simon & Partners, LLC
For Defendants: Shaw & Associates

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