West 30th St. Parking Corp. v. Sobel

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…