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A tax lawyer who fled his offices because of secondhand smoke coming from the adjacent suite of another tax attorney can sue his neighbor, the building and its managers for breaching his right to quiet enjoyment of his property, a judge has ruled. Manhattan Supreme Court Justice Richard F. Braun said the plaintiff had demonstrated that he may have been constructively evicted, a necessary element of a claim for breach of the covenant of quiet enjoyment. “Even if plaintiff’s moving out when it did was not a complete constructive eviction … plaintiff still claims it had to seal up the conference room due to the smoke, and other rooms became unusable, which may have constituted a partial constructive eviction,” Justice Braun wrote in Paul v. 370 Lex, LLC, 105840/02. But the judge dismissed claims against the building and manager brought under public health laws and the city’s Smoke-Free Air Act. He found that public health law did not provide for civil damages and that no actions by the defendants violated the city’s smoking code. The plaintiff, Herbert M. Paul, first leased an office at 370 Lexington Ave. in July 1991. An attorney and certified public accountant, Paul is also a member of the board of trustees at New York University. The defendant, tax attorney Richard W. Anderson, moved into the adjacent suite in 1999. Thereafter, Paul has claimed, parts of his offices became unusable due to infiltrating cigarette smoke. Paul claims he complained repeatedly to both Anderson and to the building’s managers, Murray Hill Property Management Inc. Murray Hill agreed to address the issue and claimed it sent employees to Anderson’s suite. The company also claimed it checked ductwork, walls, radiators and piping. Justice Braun noted that Anderson’s lease would have permitted his eviction for using his premises “in a manner which would be offensive or objectionable to other building occupants by reason of odors.” But no such action was taken. Anderson has testified in depositions that he only received one phone call from Murray Hill’s vice president. Anderson said the man told him about Paul’s complaints and asked him to “open a window, something like that.” Anderson testified that he smoked in his office only occasionally. His wife, who was his office manager, was the only other employee in the suite. She testified she smoked no more than five cigarettes a day and always did so with a window open. The building and property management company had both argued that Paul, who is seeking damages for his moving costs and his inability to use the rooms in his suite, could not claim constructive eviction because he did not act reasonably by agreeing to extend his lease in 2000, after Anderson moved in. But Justice Braun said Paul’s reasons for moving out early should be determined at trial. He also said Paul could pursue a suit for nuisance against Anderson, but he dismissed similar claims against the building and Murray Hill. The city smoking code at the time permitted smoking in private offices, provided the office was occupied by no more than three people, all of whom agreed to the smoking. Amendments to the code introduced by New York Mayor Michael R. Bloomberg eliminated such exceptions and banned virtually all smoking in workplaces.

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