Where There's Smoke, There's a Lawyer

April 4, 2008 — -- Do you smoke? Well, you better be careful where. I don't smoke, and I don't like the smell, but what some people are doing to smokers makes me say give me a break.

For the last 12 years, Galila Huff has owned Caffé la Fenicé, a restaurant serving Italian food on the Upper West Side of New York City.

Smoking there is forbidden. New York state bans it in all restaurants and bars.

Huff's apartment is a few blocks away at The Ansonia, an ornate turn-of-the-century building that both Babe Ruth and Arturo Toscanini once called home.

Huff lives there alone except for her Chihuahua, and her cigarettes. For 40 years, she's smoked a pack or two a day.

But then in October, she got a letter from her neighbors. It said, "Dear Resident, immediately cease smoking in your apartment, unless and until you take adequate steps to properly ventilate your smoke out of your apartment such that none enters the common hallway."

Huff couldn't believe it. First she can't smoke in her own restaurant, now she can't smoke in her own apartment?

"I mean the cigarettes smell, yeah. But I'm not puffing into their faces," she said.

The complainants -- Jonathan and Jenny Selbin -- wouldn't agree to a television interview, but they did file a lawsuit against Huff, saying she is "willfully, intentionally, recklessly and/or negligently endangering the health of plaintiffs and their 4-year-old son. … As evidenced by her refusal to address the grave danger posed to the health of a small child, despite repeated requests and warnings, defendant's conduct is actuated by evil and/or reprehensible motives."

Huff's dog didn't escape mention in the lawsuit either. The lawsuit continued, "Such motives are also evidenced by the fact that after plaintiffs complained about the smoke, defendant encouraged her dog to urinate on plaintiffs' property and in front of their doorway."

When asked whether it's true that her dog urinated on her neighbor's property, Huff said, "I never saw that, but maybe. I don't know." The dog had no comment.

Legal System 'a Tool for Bullying'?

Huff took steps to insulate her apartment. The apartment building did construction work, sealed off air ducts and made sure no smoke could get from her apartment to the Selbins', but now the neighbors were complaining about smoke in the hallway.

And who are these neighbors? Surprise! They're lawyers. Jonathan Selbin is a partner in the big law firm Lieff Cabraser Heimann & Bernstein. He made sure his special skills were clear to Huff in a letter: "We are both lawyers, and both litigators, for whom the usual barriers to litigation are minimal."

That's very true. Reading that drove me to write an Op-Ed for the Wall Street Journal (CLICK HERE to read).

"Without any question, the legal system has become a tool for bullying in this country," said Philip Howard, chair of the legal reform group Common Good. "And if you're a lawyer, and you don't have to go out and spend money for another lawyer, you can use it as a hammer."

"People think of lawsuits as kind of a neutral process … have your day in court," Howard said. "Being in a lawsuit is a traumatic event, and if someone sues you, for almost anything … it's just like a bludgeon. It changes your life. You can't sleep at night."

He's right. Remember the Chungs, the dry cleaners in suburban Washington, D.C., who were sued because they reportedly lost one pair of pants?

When the Chungs found the pants days later and presented them to their customer, he refused to accept them and claimed they were not the pants he had given them, despite the matching tag, and promptly filed a lawsuit. Not for their value, about $800, but for $67 million.

The man who filed that suit was -- surprise again -- a lawyer. He was a local judge, in fact, named Roy Pearson. Pearson took his complaint to trial. He did drop the damage amount from $67 million though -- to $54 million. The case was finally dismissed, but because of the dispute, the Chungs had to close one of their two stores.

'This Is An Abuse'

Likewise, Huff says the Selbins' lawsuit has taken a toll on her. "Almost for one year, I'm not sleeping and I'm having stomachache."

The "20/20" team didn't smell any smoke in the common space outside Huff's door. And, the Ansonia isn't your typical apartment building. The hallways are huge, 10 feet across and 100 feet long. You could drive a car through there. Any smoke that comes out of an apartment would dissipate. And the door of the lawyers who are suing is at least 50 feet from Huff's main entrance.

Still, smoke can leak out from many places, so Huff worked to reduce the smell. She says she's tried to quit smoking, but failed. She got four air purifiers … big ones. "I was trying to do everything to change what I could change or what I could add: the machine, the windows, to seal the apartment. I did everything that I could have done. … This is an abuse."

And it's not as if she intruded on the Selbins' space. Huff has lived in her apartment for 15 years. The Selbins moved next door five years ago.

"I was first here and when they come to buy the apartment … they didn't smell it?"

When we asked the Selbins about that, Jonathan Selbin wrote us, " I have lived in the building since 1999. My wife and I looked at what is now my apartment on several occasions, and on those occasions there was no strong smell of smoke in the hallways. I do not know why that was -- perhaps she was away during those visits. Or perhaps it was because I visited during the day, and the smoke is usually worst first thing in the morning and again in the evening, in other words, times she is home."

One other point. Their building is on Broadway in New York City. There are lots of chimneys, and exhaust fumes from cars, trucks, and buses. How pristine does the air have to be? We're breathing all kinds of things around here.

This week Jonathan Selbin wrote ABC News and asked, "Have you asked Ms. Huff how she would react if we put dog poison in the shared hallway?" So we asked her.

"How can you say something like this?" Huff said.

Selbin also wrote ABC News, "We also do not want to try to tell Ms. Huff to stop smoking (in her home or anywhere else), nor is it our business what she does in the privacy of her home. It is only because her smoke comes into our common, shared hallway that it has become our business."

You don't want Jonathan Selbin getting into your business. He's a class action lawyer. He sues companies for millions. His law firm Web site brags that a magazine named him a "Super Lawyer." It's not good to fight with a "super lawyer."

This week, he sent Huff a settlement agreement with a new list of demands that she must meet if she hopes to get out from under his lawsuit. It includes one that says she will not seek any further publicity.

"I don't want to harm anyone. I'm trying not to smoke," Huff said. "But you know, I cannot do more than that. This is my demon, I'm a smoker. What can I do? I'm smoking for 40 years."

What can she do? Does she have to move? On Thursday night she agreed to his demands. Give me a break.

UPDATE: Jonathan Selbin posted the following response to the report on the message board:

"I have read these comments with interest. Based upon the one-sided hit piece John Stossel chose to run on me without presenting the full factual background, I can understand why so many people have had such a strongly negative reaction. Stossel had -- a week before the piece ran -- our statement about the situation which provided the full story, but chose to simply ignore it. I do not expect I will change many minds here, but I did [think] you might want the full story, and might want to question why Stossel chose to present only one side. To view the statement we provided to him in its entirety, you can go to: http://blog.simplejustice.us/2008/04/06/stossels-folly--selbin-responds.aspx

The only change from what is set forth there is that the settlement we agreed to with our neighbor (which Stossel characterized as our "latest set of demands," when it was in fact an agreement negotiated with her lawyer, not some list of our demands) requires her to use the donated air purifiers and a smokeless ashtray. Period. Don't believe everything you read (or see on TV)."

ABC News asked people on the street -- smokers and non-smokers -- what they thought of the lawsuit. We told them that a woman who smokes in her own apartment is being sued by her neighbors because they say they can smell the smoke in the hallway, and asked them for their reactions.

Follow up questions included:How would you react if someone sued you for smoking in your own apartment?

Where can you smoke nowadays?

The neighbors that sued are lawyers themselves. What do you think about that?

CLICK HERE TO SEE SOME OF THEIR RESPONSES.

ABC News Producer Frank Mastropolo contributed to this report.