Joseph P. Day Realty Corp. v. Franciscan Sisters for the Poor Health System, Inc.

256 A.D.2d 134, 681 N.Y.S.2d 511, 1998 N.Y. App. Div. LEXIS 13693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about June 3, 1998, which, in an action to recover rent, denied plaintiff’s motion to dismiss defendant’s claims of constructive eviction, unanimously affirmed, with costs.

Whether defendant failed to abandon the premises with reasonable promptness after plaintiffs alleged wrongful failure to provide services and perform acts called for under the parties’ leases, and thereby waived the right to claim constructive eviction, is an issue of fact (see, Leider v 80 William St. Co., 22 AD2d 952). It is unclear when, if ever, the conditions that allegedly caused defendant to abandon the premises became so severe as to necessitate the abandonment. Concur — Lerner, P. J., Sullivan, Milonas, Rosenberger and Ellerin, JJ.