Some “neighborly” legal disputes are like an Agatha Christie “whodunit”. A recent forensic “thriller” involved two East 83rd Street apartment tenants who had lived in the building for 30 years, a nosy tenant next door and a ubiquitous building super—in a jurisprudential search for the “smoking [one]”.

The landlord imposed a smoke-free environmental policy in March, in the midst of the Coronavirus pandemic, which forced many of the building’s tenants to be home 24/7. Signage in the lobby requested that all smoking be done outside and at least 15 feet away from the building.

J&P Realty, LLC, as landlord,  sued Deborah Schevill and Marianne Spinelli, as tenants– and sought a preliminary injunction barring Schevill from smoking in her apartment and in common areas or smoking in such a way as to cause secondhand smoke to permeate the building.

Schevill and Spinelli live in separate apartments on separate floors; and  both lived in the building for over three decades. Because of Covid-19, people are home all day and all night. Schevill smokes, and she did not deny that she smoked in her apartment.

J&P stated that, since the “shelter in place” order took effect, it received multiple complaints from Spinelli about smoke permeating her home. Spinelli insisted that the smoke was coming from Schevill’s apartment. Spinelli lives on the floor above Schevill but not directly above.

Schevill was not the only smoker in the building and she was allowed to smoke in her apartment because the terms of her lease could not be changed. J&P contended that Schevill refused to refrain from smoking in her apartment despite a Covid-19 building-wide policy that prohibited smoking in apartments or in common areas, and despite being asked politely.

J&P submitted an affidavit from the live-in super who stated that she smelled smoke emanating from Schevill’s apartment and Schevill had refused the super’s attempts to enter and inspect. The super also contended that she could smell smoke in the hallway where Spinelli’s apartment is located (the floor above) but that Spinelli had also refused to let her into her apartment to assess the smell and ascertain possible ways to alleviate the odors.

Schevill admitted that she smoked in the building–but complained that requests from the building to cease smoking were tantamount to harassment. And insisted her smoking did not bother anyone in the building.

J&P submitted an affidavit from a non-party tenant who lives in a building located directly next door. She claimed her kitchen window directly faces the building where Schevill and Spinelli live and contended that, since she had started working from home, her apartment had been inundated with smoke and she complained to the super.

Faced with a nonsmoking tenant (who kept complaining that the landlord was not doing anything to stop the smoker) and a smoking tenant (who was allowed to smoke and claimed the landlord was harassing her), J&P filed suit.

A party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor. Entitlement to a preliminary injunction depends upon probabilities, any or all of which may be disproven when the action is tried on the merits.

A preliminary injunction substantially limits the rights of an individual and is thus an extraordinary provisional remedy requiring a special showing.

A private nuisance is a legal cause for the invasion of the interest in the private use and enjoyment of land—if such invasion is intentional and unreasonable, negligent or reckless or actionable under the rules governing liability for abnormally dangerous conditions or activities.

The Court denied the preliminary injunction because J&P failed to demonstrate a probability of success on the merits. The first cause of action was for nuisance and J&P failed to submit sufficient evidence showing a likelihood of success on that claim. J&P could not show that the smoke was so pervasive or unreasonable that it merited the issuance of injunctive relief. Nor did J&P show that the smoke was emanating from Schevill’s apartment (there were other smokers in the building). Moreover, there was no affidavit or any submission from Spinelli regarding the effect of the purported smoke or how she “knows” that all the smoke she complained about was from Schevill apartment.

Central to the Court’s decision was J&P’s admission, in a letter sent from its attorney to Schevill on April 17, 2020, that “I recognize that you have every right to smoke within your apartment as the `No Smoking’ policy came into effect long after you moved into the apartment”. And courts have held that smoking in one’s own apartment, standing alone, does not necessarily state a cause of action for nuisance.

Because Schevill was indisputedly allowed to smoke in her own apartment, J&P had to show a probability of success on the merits that Schevill’s smoking constituted a nuisance. Although the super’s and Schevill affidavits establish that Schevill was smoking, that did not mean that the smoke complained about was coming exclusively from Schevill’s apartment  or that it was so pervasive that it constituted a nuisance. The super did not claim the smoking was so bad that she was unable to walk through the hallways; that Schevill was the only smoker on her floor; or that there were no smokers on Spinelli’s floor. And without anything directly from Spinelli, the Court was left with an alleged condition that the landlord said was the reason another tenant is complaining.

And the affidavit from the tenant in the neighboring building did not save J&P’s request. She was unable to identify where the smoke was coming from and there was no evidence demonstrating that the condition she complained about was emanating from Schevill’s apartment. That may have the super believed, but that was not enough to establish whether the smoke was coming from Schevill or another tenant in either of the buildings.

The Court stressed that J&P’s submissions did not justify a hearing. A hearing was necessary only when the elements required for the issuance of a preliminary injunction were demonstrated in the moving papers and Schevill raised issues of fact with respect to such elements. The evidence from  J&P showed that the super believed Schevill was smoking, something she was allowed to do in her apartment. The super may even have believed that Schevill was smoking near her open window and tried to connect the complaint from the tenant in the building next door to Schevill’s smoking. The super’s affidavit was the only first-hand knowledge about the conditions in the building. But it did not show the smoking was unreasonable or pervasive or that the conditions complained about by Spinelli were caused by Schevill. And the resident of the adjacent building had no idea where the smoke was coming from.

There was not enough evidence for the Court to impose the drastic remedy of a preliminary injunction. The Court declined to restrict an activity that J&P admitted Schevill was allowed to engage in and had not shown was so unreasonable as to constitute a nuisance. The Court recognized that Spinelli was clearly upset about the condition and that the issue was likely exacerbated by the fact that all parties were staying home. And the evidence showed that the landlord tried to resolve the issue by communicating with both parties before coming to court. Clearly, the landlord had no choice but to bring the lawsuit after Schevill told J&P to talk to her attorney rather than reach some sort of agreement and Spinelli continued to complain.

The Court was not making a finding that J&P’s case completely lacked merit or that the complaints from Spinelli were not genuine. But the Court was required to decide the motion whether to impose an extraordinary provisional remedy. The Court could only do that if J&P met the burden of showing entitlement to that relief. The papers submitted showed that J&P had received numerous complaints about a smoke condition, but there was no direct evidence about the scope, severity or origin of the smoke.

The Court barred Schevill from smoking in the common areas of the building and denied the other requested relief. So Schevill could continue to smoke in her apartment with the door closed.

* “Smoke Gets in Your Eyes” by Jerome Kern and Otto Harbach for the 1933 musical comedy “Roberta”. And resurrected in 1958 by “The Platters” in their album “Remember When?”