Constructive Eviction in New York

What Is Constructive Eviction?

Background

“A ‘constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises.’” (Oshy v. Koufa Realty Corp. (2012) 35 Misc. 3d 1207 quoting Barash v. Pennsylvania Term. Real Estate Corp. (1970) 26 N.Y.2d 77, 83.)

In the seminal case of Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY 77 (1970), the Court of Appeals recognized that “[i]n the context of a commercial lease, a landlord is not entitled to recover the full amount of the rent if the tenant has been actually or constructively evicted from either the whole or part of the leasehold. An actual eviction takes place when the acts of the landlord cause a physical expulsion or exclusion from the premises. A constructive eviction occurs when there is an abandonment of the premises by the tenant because the continued beneficial use of the premises is impossible. (Town Tennis Member Club, Inc. v. Plaza 400 Owners Corp. 2012 N.Y. Slip Op. 32175, 11 quoting Barash v. Pennsylvania Terminal Real Estate Corp., supra; Manhattan Mansions v. Moe's Pizza (1990) 149 Misc.2d 43.) A constructive eviction that is only partial, may nonetheless, still warrant a remedy, albeit something less than a full rent abatement. (Minjak Co. v. Diane Randolph (1988) 140 A.D.2d 245; New York City Economic Development Group v. Harborside (2006) 12 Misc. 3d 1160.)

General Information for Complaints and Motions

“To establish a constructive eviction there must be a showing of an abandonment of the premises.” (36 Main Realty Corp. v. Wang Law Office, PLLC (2005) 49 Misc. 3d 51, 54-55 citing Barash, supra, 26 N.Y.2d at 77.)

“A tenant that has been constructively evicted is entitled to an abatement of rent [not an entire suspension of rent].” (Fideor v. Stiewe 2016 N.Y. Slip Op. 50973, 5 [N.Y. Just. Ct. 2016].)

In addition, the tenant “must have been deprived of something to which he was entitled under or by virtue of the lease.” (Id.)

“[M]ere payment of rent does not constitute a waiver of constructive eviction. (Sheffield v. Pucci (2019) 63 Misc. 3d 1216 citing Balzano v. Lublin (1990) 162 A.D.2d 252 ["the payment of all required rent is a condition precedent to the maintenance of such an action [such as ... breach of the covenant of quiet enjoyment]"] citing Dave Herstein Co. v. Columbia Pictures Corp. (1958) 4 NY2d 117, 121.)

Covenant of Quiet Enjoyment as Grounds for Constructive Eviction

To state a claim for breach of the covenant of quiet enjoyment, a plaintiff must allege actual or constructive eviction. (Sheffield v. Pucci (2019) 63 Misc. 3d 1216 citing Jackson v. Westminster House Owners Inc. (2005) 24 A.D.3d 249, 250.) For there “to be an eviction, constructive or actual, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.” (Barash v. Pennsylvania Terminal Real Estate Corp. (1970) 26 N.Y.2d 77, 82.) In addition, a contractual agreement or landlord-tenant relationship is required to establish a claim for breach of the covenant of quiet enjoyment. (Sheffield v. Pucci (2019) 63 Misc. 3d 1216.)

Importantly, “[w]hether the breach of the covenant [of quiet enjoyment] is alleged as defense to an action for rent due, or is used as a basis for an action for damages, the determining factor, with few exceptions, is whether the tenant as vacated the premises.” (Dance Magic, Inc. v. Pike Realty, Inc. (2011) 85 A.D.3d 1083.)

The Court’s Decision

Construction Disruptions and Constructive Eviction

“[T]he erection of temporary scaffolding and sidewalk sheds does not constitute constructive eviction, [where] the scaffolding and sheds are authorized by the lease.” (Carlyle, LLC v. Beekman Garage LLC (2015) 133 A.D.3d 510, 510, 19 N.Y.S.3d 520; Bd. of Managers of the Saratoga Condo. v. Shuminer (2017) 51 N.Y.S.3d 34, 35.)

Offices and Parking Spaces

Where “the Respondent continued in possession of the office space and continued to use the onsite parking provided ... there is no constructive eviction.” (Garry v. Ryan & Henderson, P.C., 2016 N.Y. Slip Op. 50981, 4 [N.Y. Dist. Ct. 2016].) “A case in point is Scolamiero v. Cincotta (1987) 128 A.D.2d 224, wherein the tenant failed to vacate the leased premises and renewed the lease. The Court held there was no constructive eviction regarding the leasing of the parking space to another tenant. The tenant's claims were restricted to the amount of damages suffered in the diminution of use of the parking spaces: "However, in order to claim constructive eviction tenant must vacate the premises.... (Union Dime Sav. Bank v. Frohlich, supra; Meerbaum v. Crepes D'Asie, Inc., 85 Misc. 2d 345, 378 N.Y.S.2d 874) Further, where the “tenant, with full knowledge of the situation, exercise[s] her option to renew and remained in the premises ... she has waived any claim of constructive eviction....” (Id.)

Documents for Constructive Eviction in New York

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420 Kent Avenue Llc v. Precy Zamora Rivera, Hector Rivera, Nicolas Rivera document preview

EXHIBIT(S) - B - Exhibit B - Leases

104 pages

FILED: KINGS COUNTY CLERK 0571472024 12:01 PM INDEX NO. 513198/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/14/2024 Exhibit B INDEX NO. 513198/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/14/2024 …

Case Name 420 Kent Avenue Llc v. Precy Zamora Rivera, Hector Rivera, Nicolas Rivera