Meerbaum v. Crepes D'Asie, Inc.

Memorandum. Final judgment in favor of tenant unanimously reversed, without costs, and case remanded to the court below for a trial de novo.

*346Untenantability of a portion of the demised premises as opposed to physical expulsion therefrom does not give rise to a partial actual eviction (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Self Serv. Furniture Fair v 450 Realty Corp., 114 NYS2d 774) and since tenant herein did not vacate the premises, a constructive eviction cannot be claimed (Barash v Pennsylvania Term. Real Estate Corp., supra). In view of the foregoing, the landlord was…