Opinion
2012-11-14
JOYLAINE REALTY CO., LLC, appellant, v. Roshni SAMUEL, etc., respondent.
Richard Creditor, LLC, Forest Hills, N.Y., for appellant. Cooper, Paroff, Cooper & Cook, Kew Gardens, N.Y. (Ira G. Cooper of counsel), for respondent.
Richard Creditor, LLC, Forest Hills, N.Y., for appellant. Cooper, Paroff, Cooper & Cook, Kew Gardens, N.Y. (Ira G. Cooper of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
In an action to recover unpaid rent, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Shulman, J.), dated August 1, 2011, as, upon a decision of the same court dated March 21, 2011, made after a nonjury trial, is in favor of the defendant and against it dismissing the complaint.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
“[A] commercial tenant may be relieved of its obligation to pay the full amount of rent due where it has been actually or constructively evicted from either the whole or a part of the leasehold” ( Johnson v. Cabrera, 246 A.D.2d 578, 578–579, 668 N.Y.S.2d 45;see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707;Dave Herstein Co. v. Columbia Pictures Corp., 4 N.Y.2d 117, 172 N.Y.S.2d 808, 149 N.E.2d 328). “A constructive eviction occurs where ‘the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises' ” ( Johnson v. Cabrera, 246 A.D.2d at 578, 668 N.Y.S.2d 45, quoting Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 83, 308 N.Y.S.2d 649, 256 N.E.2d 707;see Grammer v. Turits, 271 A.D.2d 644, 645, 706 N.Y.S.2d 453). Here, the repeated flooding of the subject premises substantially and materially deprived the defendant of the beneficial use and enjoyment of the premises, and the plaintiff failed to take any steps to correct the condition ( see 801 S. Fulton Ave. Corp. v. Radin, 138 A.D.2d 561, 563, 526 N.Y.S.2d 143;see also King v. 870 Riverside Dr. Hous. Dev. Fund Corp., 74 A.D.3d 494, 495, 902N.Y.S.2d 86;cf. 34–35th Corp. v. 1–10 Indus. Assoc., LLC, 16 A.D.3d 579, 580, 792 N.Y.S.2d 173).
Accordingly, the Supreme Court properly determined that a constructive eviction occurred, which suspended the defendant's obligation to pay rent ( see Johnson v. Cabrera, 246 A.D.2d at 579, 668 N.Y.S.2d 45;801 S. Fulton Ave. Corp. v. Radin, 138 A.D.2d at 563, 526 N.Y.S.2d 143).