Scaffolding Around Building Isn't Partial Constructive Eviction

What Happened: An office tenant first became disenchanted when the HVAC system failed and it had to install a new air conditioning unit at its own expense. Two years later, the landlord had to bring in a contractor to completely replace the building’s terra cotta façade. The tenant stopped paying rent. When the landlord sued, the tenant claimed partial constructive eviction, among other things.

Ruling: The New York court dismissed the partial constructive eviction claim.

Reasoning: Partial constructive eviction occurs when a wrongful act of the landlord denies the tenant use of a portion of the property. Tenants don’t have to move out, the way they do to show constructive eviction; instead, they can stay in the property and pay reduced (or suspended) rent. In this case, the tenant claimed that the scaffolding the contractor erected limited access to the entrance and forced its employees “to quit and abandon material portions of the Premises.” The tenant also claimed the contractor’s workers were unduly noisy, disruptive, and left bottles of their own urine on the site.

But the court didn’t buy any of it. First and foremost, the landlord didn’t commit a wrongful act. It had to do the façade work to comply with a city building order citing the crumbling terra cotta as a hazard. And even if the tenant’s claims about the workers were true, the contractor and not the landlord was responsible for their behavior.

• Gotham Real Estate Devs., LLC v. 432 Park S. Realty Co LLC: 2021 N.Y. Misc. LEXIS 5541, 2021 NY Slip Op 32193(U)