Neighbor is destroying our property by chain smoking with the windows rolled up. We breathe her second hand smoke daily. Do we have legal recourse?

We live in suffolk county NY in a condo complex, a co-op community.
Recently e had a new neighbor move in. She is the daughter of the
shareholder and owner of the unit. The owner of the unit has never
lived there. This person is a chronic smoker and drinker. She has
been smoking indoors for about a year now and our home is starting
to smell like stale smoke. At times , about 2-3 days a week, we can
smell fresh smoke in our bathroom. The smell seeping from her home
into ours is beyond repulsive and is affecting my wifes health.

We contacted the co-op board and they have done nothing but put
us off with promises of a resolution. We have personally asked our
neighbor 3 times to do something about it, one time she laughed as if
it as funny, once she asserted her right to smoke inside and thats
why her mother purchased the unit for her and the last time she
confronted us on her own, loudly complaining about the emails we
were sending to the co-op board.

Nobody is doing anything. The co-op board doesnt seem to care, the
neighbor knows she is damaging our property and refuses to stop,
even though she has an attached deck to her unit. Meanwhile, our
linen closet reeks of years old stale smoke, our bathroom frequently
smells like an ash tray and it’s getting worse.

What can we do?

Asked on April 21, 2017 under Real Estate Law, New York

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can sue your neighbor for nuisance which is an unreasonable interference with the use or enjoyment of your property.
Damages (monetary compensation in a lawsuit for nuisance) are an inadequate remedy because of multiplicity of suits due to your neighbor's continuous smoking.  Damages are also an inadequate remedy because land is unique.
Since damages are inadequate, your remedy is an injunction to attempt to stop the damage to your property and health from the smoking.  A court will balance the hardship to you versus the neighbor's right to smoke in her residence in order to determine whether an injunction should be granted.
Are there any applicable local ordinances which ban smoking  and protect the rights of neighbors who are non-smokers? If so, you can use the violation of the applicable ordinance in support of an injunction.


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