Scott E. Mollen Scott E. Mollen

Commercial Landlord-Tenant—Law Firm Tenant Failed To Establish Partial Actual or Constructive Eviction

A landlord appealed from a trial court decision, following a non-jury trial, which dismissed the petition in a non-payment summary proceeding and directed the landlord to credit the tenant's account with an 80 percent abatement of rent, additional rent and other charges from June 23, 2016 through Jan. 15, 2017. The trial court had also granted the tenant's claim for attorney fees as the prevailing party and denied the landlord's motion for a stay of enforcement of the final judgment.

The Appellate Term (court) reversed, reinstated the petition and awarded the landlord a final judgment for possession and rent arrears in the principal amount of $58,491.17. The court also granted the landlord's claim for attorney fees.

The parties' commercial lease authorized the landlord to make "'repairs, alterations, additions or improvements' in or to any portion of the building or demised premises, with 'no allowance to tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business' arising from these acts." The lease further provided that the tenant "is not entitled to 'any setoff or reduction of rent' due to Landlord's failure to comply with any covenant of the lease, and that tenant's 'sole remedy' at law is an action for breach of contract." Moreover, the lease permitted the landlord to make changes to "'corridors…toilets or other public parts of the building' without the same 'constituting an eviction and without incurring liability to tenant' for 'inconveniences, annoyance or injury to business.'"