SMOKING NEEDED TO BE "UNREASONABLE"
After the Priceman Family brought a nuisance holdover proceeding against the Kerrigan Family, their tenants, for smoking cigarettes inside their apartment, the latter sought to have the case dismissed – via a motion for summary judgment – and a Kings County Civil Court Judge granted that request.On appeal, the Appellate Term, Second Department, noted that to constitute a “nuisance,” the condition must threaten “`the comfort and safety of others in the building.’” And to that end, the AT2 reiterated that the “`tenant's use of property 'must interfere with a person's interest in the use and enjoyment of land,' which 'encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance.'”
But the AT2 similarly noted that, as city dwellers, “perfection” cannot be realistically expected, and added, “`If one lives in the city he [or she] must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life’ …. We find that the record establishes, as a matter of law, that tenants' ‘conduct in smoking in the privacy of their own apartment was not so unreasonable in the circumstances presented’ as to constitute a nuisance.”
Did they just make a nuisance of themselves?
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DECISION