Opinion
December 5, 1975
Appeal from the District Court of Nassau County, Third District, HAROLD FERTIG, J.
Stanley Zuckerman for appellant.
Charnin, Weisman Trabucchi (Sylvia E. Kelman of counsel), for respondents.
MEMORANDUM.
Final judgment in favor of tenant unanimously reversed, without costs, and case remanded to the court below for a trial de novo.
Untenantability of a portion of the demised premises as opposed to physical expulsion therefrom does not give rise to a partial actual eviction (Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77; Self Serv. Furniture Fair v 450 Realty Corp., 114 N.Y.S.2d 774) and since tenant herein did not vacate the premises, a constructive eviction cannot be claimed (Barash v Pennsylvania Term. Real Estate Corp., supra). In view of the foregoing, the landlord was entitled to the amount demanded as rent in the petition. However, the court below also found that the landlord breached certain covenants in the lease, a breach that was the subject of a setoff interposed by tenant. Although the tenant failed to adduce any evidence tending to establish the damages sustained thereby, the deficiency in proof may be remedied and, therefore, a new trial should be had for a fuller development of the facts.
Concur: HOGAN, P.J., PITTONI and FARLEY, JJ.