West 30th St. Parking Corp. v. Sobel

Appellate Terms of the Supreme Court of New York

West 30th St. Parking Corp. v. Sobel

21 Misc. 2d 274, 193 N.Y.S.2d 914, 1959 N.Y. Misc. LEXIS 2651

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 12, 1959

StatusPublished

Cited by4 cases

This text of 21 Misc. 2d 274 (West 30th St. Parking Corp. v. Sobel) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

West 30th St. Parking Corp. v. Sobel, 21 Misc. 2d 274, 193 N.Y.S.2d 914, 1959 N.Y. Misc. LEXIS 2651 (N.Y. Ct. App. 1959).

Pincite

Opinion

Per Curiam.

The defense of partial eviction so as to discharge the payment of rent is not available in a situation where the basement of the demised premises is excessively damp. This would constitute a constructive eviction, however, if accompanied by tenant’s abandonment of the premises (Boreel v. Lawton, 90 N. Y. 293; Ferguson Bros. & Forshay v. Ward, 147 N. Y. S. 868). Since the tenant, herein, is still in possession, it was error for the court below to deny landlord’s request for a final order for nonpayment of rent. Moreover, since under the terms of the lease, such damages as tenant asserts in his counterclaim can only be recovered in the event of landlord’s negligence, the judgment on the counterclaim must be vacated for failure of proof of negligence. However, such proof may be adduced at a new trial.

Determination below reversed in all respects and final order in favor of the landlord is directed to be entered, without prejudice to tenant’s commencing a new action for damages due to negligence.

The final order and judgment should be reversed, with $30 costs, and final order and judgment directed for landlord as prayed for in the petition, with costs.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Final order and judgment reversed, etc.

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Per Curiam.

The defense of partial eviction so as to discharge the payment of rent is not available in a situation where the basement of the demised premises is excessively damp. This would constitute a constructive eviction, however, if accompanied by tenant’s abandonment of the premises (Boreel v. Lawton, 90 N. Y. 293; Ferguson Bros. & Forshay v. Ward, 147 N. Y. S. 868). Since the tenant, herein, is still in possession, it was error for the court below to deny landlord’s request for a final order for nonpayment of rent. Moreover, since under the terms of the lease, such damages as tenant asserts in his counterclaim can only be recovered in the event of landlord’s negligence, the judgment on the counterclaim must be vacated for failure of proof of negligence. However, such proof may be adduced at a new trial.

Determination below reversed in all respects and final order in favor of the landlord is directed to be entered, without prejudice to tenant’s commencing a new action for damages due to negligence.

The final order and judgment should be reversed, with $30 costs, and final order and judgment directed for landlord as prayed for in the petition, with costs.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Final order and judgment reversed, etc.

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Bluebook (online)

21 Misc. 2d 274, 193 N.Y.S.2d 914, 1959 N.Y. Misc. LEXIS 2651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-30th-st-parking-corp-v-sobel-nyappterm-1959.

Opinion

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