737 Park Avenue Acquisition LLC v. Jetter, New York County Landlord Tenant Court Index No. 71456/2012
Constructive eviction is an often-used defense to non-payment of rent. As this case shows, it is a defense that is difficult to establish. In this summary non-payment proceeding, the tenant, who operated his medical office from the premises, contented that the landlord’s repairs had constructively evicted him. The court gave short shrift to most of the tenant’s claims finding that the lease permitted the repairs. These repairs included the installation of scaffolding, a sidewalk shed, and a construction hoist, as well as interruptions in water service.
The court however found that flooding due to broken pipes caused by construction activities supported a portion of the tenant’s claim for constructive eviction. The court further found that as a result of the flooding, the tenant was “substantially and materially” denied use of the premises for a period of three weeks. Accordingly, the court awarded the tenant a ¾ of a month rent abatement.
The lesson of 737 Park Avenue Acquisition is that only where a tenant is substantially and materially deprived of the beneficial use and enjoyment of the premises will a constructive eviction defense succeed.