A building owner was sued by a tenant, an occupant of an apartment in the building, who alleged that he suffered physical injury caused by second hand cigarette smoke. The complaint stated that the smoke originated in a billiard club located in the basement of the building and seeped through vents in his upper level apartment.

The landlord's general liability insurer disclaimed liability and brought an action for a declaration that, on the basis of the pollution exclusion in the policy, it had no duty to defend or indemnify the insured. The insured appealed from an order of the trial court granting the insurance company's motion. The court held that the exclusion was clear and applicable to the apartment tenant's complaint.

The pertinent exclusion in the policy provided that the insurer was not liable for bodily injury or property damage caused by pollutants. The term "pollutant" was defined in the policy to include vapor, smoke and fumes.

The appeal court noted that such properties were precisely described in the underlying complaint as causing the alleged injuries. It concluded that second hand cigarette smoke originating in the lower level of the building was clearly within the scope of the exclusion.

The judgment of the trial court was affirmed in favor of the insurance company and against the insured.

(DEMAKOS ET AL., Appellants v. TRAVELERS INS. CO., Respondent. NY State Supreme Court, Appellate Division, Second Judicial Dept. No. 92-08583. June 27, 1994. CCH 1994 Fire and Casualty; Cases, Paragraph 4934.)