Petitioner brought this non-payment proceeding to evict respondent in December 2018. The petition states that respondent owed October, November and December rent at $1,175.00 per month, a late charge of $100.00 per month and $184.00 on a water bill for a total outstanding arrears of $4,009.00. The petitioner also seeks legal fees and costs.Respondent answered the petition raising various affirmative defenses and asserting a counterclaim alleging that there has been a breach of the covenant of quiet enjoyment by petitioner constituting a partial eviction thereby and demanding a rent abatement.It is uncontested that respondent rented a store at 44 West 1st Street, Mount Vernon, New York from petitioner in 2010. It is further uncontested that the original lease lasted four (4) years and has been extended several times since the conclusion thereof. On April 1, 2017 petitioner and respondent entered into a lease extension that ran from April 1, 2017 through March 31, 2018. A copy of said lease extension was entered into evidence as Exhibit “2″. Respondent is currently in possession of the premises pursuant to an additional lease extension for the period from April 1, 2018 through March 31, 2019, which was agreed upon via correspondence dated April 29, 2018. A copy of said additional lease extension was entered into evidence as Exhibit “2″. The petitioner contends that from 2014 though 2017 there were written extensions. Respondent claims for that time period she was a month to month tenant.It is also uncontested that respondent has not paid the rent, late charges and water bill as claimed by petitioner.Respondent states that she works well into the evening at her hair salon. From 2010 through 2014 everything was fine. Then in 2014 a gun range was opened in the basement of the building. Respondent alleges numerous conversations with the petitioner about problems of noise and shaking. Two letters were sent from respondent to petitioner, one in October of 2014 and another in July of 2018 concerning the problems. Copies of the letters were entered into evidence as Exhibit “3″ and “4″ respectively.Respondent played a tape recording which lasted 35 seconds in which six (6) gun “pops” were heard in the background. The tape was done on March 9, 2018 by respondent. Respondent stated that she renewed the lease and stayed at the premises because the petitioner said they would fix the problem and she had already invested a lot in the development of her business.The petitioner had the gun range manager Dineen Timlin testify. Ms. Timlin stated, and respondent agreed, that in 2010 when respondent moved into the premises she knew that eventually a gun range was going to be re-installed in the building (it was originally chartered in 1935). Ms. Timlin acknowledged that she received the October 2014 letter but denied that she received verbal complaints from the respondent. She further testified that the second complaint received from respondent was in 2018.The range is open on Saturday and Sunday from 11:00 am to 6:00 pm. It is closed on Mondays. On Tuesday, Wednesday and Friday it is open from 12:00 pm to 9:00 pm and on Thursday from 12 pm to 5:00 pm.Petitioner arranged for large caliber shooting to be done when respondent was closed or late at night. Petitioner installed sound proof ceiling tiles and foam insulation. Petitioner was about to put in a sub-floor in the hope of abating any noise when the respondent stopped paying rent. As a result, the project did not go forward.A review of the lease reveals that it contains a provision which waives respondent’s right to assert a counterclaim in a summary proceeding. Specifically, paragraph 19 of the lease extension agreement states, in pertinent part, “It is further mutually agreed that in the event Landlord commences any summary proceeding, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding.”Notwithstanding said lease provision respondent has asserted a counterclaim in her answer alleging that the excessive noise caused by the gun range is a breach of the lease’s covenant of quiet enjoyment of the premises which constitutes an actual partial eviction of respondent from the subject premises. In general, the determination of most counterclaims in a summary proceeding is relegated to a plenary action, preserving the summary proceeding as a vehicle for the efficient resolution of landlord-tenant disputes. Ring v. Arts International, Inc., 7 Misc 3d 869 (Civ. Ct. NY Cty. 2004). Lease terms precluding tenants from pursuing counterclaims in commercial landlord-tenant summary proceedings are generally enforceable. See Titleserv, Inc. v. Zenobio, 210 AD2d 310 (2nd Dept. 1994); Amdar Co. v. Hahalis, 145 Misc 2d 987 (1st Dept. App. Term. 1990). The exception is where a counterclaim is “so ‘inextricably intertwined’ with petitioner’s claim that joint resolution of the claims will expedite disposition of the entire controversy, avoid multiplicity of other lawsuits between the parties to accomplish the same result, do speedy justice for all and eliminate greater delay and expense’.” Ring v. Arts Intl. Inc., 7 Misc 3d 869, 880 (Civ Ct., NY Cty 2004), quoting Haskell v. Surita, 109 Misc 2d 409, 414 (Civ Ct., NY Cty 1981).The principal example of a counterclaim within such exception in a commercial nonpayment proceeding is a respondent’s counterclaim based on actual or constructive eviction, to offset the obligation to pay rent, because such claim is inextricably intertwined with nonpayment of rent. Id. citing Johnson v. Cabrera, 246 AD2d 578, 579 (2nd Dept. 1998).In the instant matter, however, the Court finds that respondent has failed to establish that there was a breach of the covenant of quiet enjoyment that constituted either a partial actual or partial constructive eviction. To make out a prima facie case of the breach of quiet enjoyment…[t]here must be an actual ouster, either total or partial, or if the eviction is constructive, there must have been an abandonment of the premises by the tenant. Bedke v. Chelsea Gardens Owners Corp., 27 Misc 3d 1212[A] (Sup Ct NY Cty 2010). A partial actual eviction requires that the tenant be physically prevented from using a portion of the leased premises. See Barash v. Pennsylvania Term. Real Estate Corp., 26 NY2d 77 (1970). To establish constructive eviction, a tenant need not prove physical expulsion, but must prove that the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 AD3d 167 (1st Dept. 2010); Barash, supra. The tenant, however, must abandon possession in order to claim that there was an eviction. Id. A constructive eviction may be partial rather than total, in which case the tenant must have abandoned only the portion of the premises affected. See Minjak Co. v. Randolph, 140 AD2d 245 (1st Dept 1988). Therefore, allegations of noise are only sufficient to state a claim for breach of the covenant of quiet enjoyment, when there are also allegations that the tenant has abandoned at least a portion of the apartment. Truppin v. Cambridge Dev., LLC, 2017 NY Slip Op 30249(U) (Sup Ct NY Cty 2017); Plautz v. Eidlin-Quere, 2011 NY Slip Op 33714(U)(Supt Ct NY Cty 2011); Yetnikoff v. Mascardo, 63 AD3d 473 (1st Dept), lv denied, 13 NY3d 712 (2009). Moreover, a commercial tenant’s constructive eviction defense is not maintainable where the alleged condition predates the period for which arrears are sought. Theatre East, Inc. v. Zorro Productions, Inc., 2002 NY Slip Op 50183[U] (1st Dept App Term 2002).In the case at bar, the credible evidence establishes respondent did not abandon the subject premises or any part of it. On the contrary, respondent continued to use all of the subject premises from the date the gun range opened in 2014 until the present and repeatedly extended her original lease after it expired in 2014, through to the present, even though the gun range, along with its accompanying noise, had been re-installed in the building. Moreover, respondent only withheld rent during the last three months of 2018, over four years after the alleged noise condition started. Based upon the foregoing, respondent did not establish a cause of action for breach of the covenant of quiet enjoyment resulting in either a partial actual eviction or a partial constructive eviction.Accordingly, the Court finds for the petitioner. Judgment to petitioner in the sum of $4,009.00 for rental arrears, including the late fees and water bill as additional rent, through December 2018.The warrant of eviction shall be stayed until March 29, 2019 to give the respondent an opportunity to pay the outstanding arrears. Respondent is further directed to pay any rent that became due and owing pending the Court’s decision on this matter, including January 2019, February 2019 and March 2019, to the extent it has not already been paid.The Court further directs petitioner to submit an affirmation for attorney’s fees with the Court within thirty (30) days of the date of this decision.Dated: March 18, 2019Mount Vernon, New York
