Truesee's Daily Wonder

Family sues cigar-smoking neighbor over secondhand smoke

KATHIANNE BONIELLO

Last Updated: 6:03 PM, January 16, 2011  Posted: 12:49 AM

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.

Helayne Seidman

HUMI-DOOR: Cigar-smoker Harry Dale is miffed over a secondhand-smoke lawsuit filed by East 79th Street neighbors Russell Poses and wife Amanda . Dale says he's spent a lot of money in a bid toaccommodate them.

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.

Read more: http://www.nypost.com/p/news/local/manhattan/smoke_scream_3BHUiT2iBXCxmqgQsXmI6K#ixzz1BHr3YAaF