West Broadway Glass Co. v. I.T.M. Bar Inc.

McCooe, J. P.

(dissenting in part). I agree with the trial court in finding a breach of lease but disagree with its awarding a total rent abatement. I disagree with the majority’s finding that the tenant abandoned the premises which was a necessary element of its conclusion that a constructive eviction was effected.

*323The trial court granted a total rent abatement on a breach of lease theory. Damages resulting from a breach of a duty to repair is not an excuse for a nonpayment of rent. (See, 2 Rasch, New York Landlord and Tenant — Summary Proceedings § 18.30 [3d ed].) The independent obligation…