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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102162
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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We get new apartment in CO OP on Queens in Dec 2013. One of

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We get new apartment in CO OP on Queens in Dec 2013. One of our neighbors is a heavy smoker. The Tobacco smoke drift from his apartment to our not only trough the windows but also from the outlets, floor etc. A lot of other tenants has the same problem with that person and I know a lot of them talk with him to solve the issue. But the problem keep coming back. Is there a legal solution to that? Can I actually use attorney help to make Coop Board or the owner of that apartment to fix his walls, ceiling or whatever cause the problem to solve the issue?
We planing to have a family soon and I have already asthma issue for a very long time and I'm afraid the tobacco smoke will be dangerous to both of us.
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Ely replied 2 years ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry for your situation.
There is precedent for suing a neighbor for smoke under NUISANCE cause of action. See here. The elements of the tort of private nuisance are: (1) an interference, substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with plaintiff's right to use and enjoy land; (5) caused by the defendant's conduct. Copart Indus. v Consolidated Edison Co., supra).
I am afraid that the Coop Board is not liable for anything and cannot force him to do anything. However, the neighbor themselves may be liable, if his actions are considered enough to be a nuisance. This is very subjective and is on a very case by case basis.
Perhaps a CEASE AND DESIST letter from an attorney threatening a lawsuit may be enough for them to stop their actions without even needing to go to Court.
Good luck.
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