NON-WORKING ELEVATORS CAN CONSTITUTE AN “ACTUAL PARTIAL EVICTION”
After the New York County Supreme Court denied a landlord’s request for its tenants to pay “use and occupancy” or “rent,” while the case was pending, the landlord appealed.
On its review, the Appellate Division, First Department, noted where elevators are “absolutely essential” to a tenant’s “beneficial enjoyment of the premises,” malfunctions can constitute “an actual partial eviction … suspending [a tenant’s] obligation to pay rent or use and occupancy.”
And while the landlord contended that the elevators had been repaired back in July 2022, the tenants submitted eight affidavits attesting to continued operational failures.
Given that backdrop, the AD1 thought that the court below had “properly exercised its discretion,” when it denied the landlord’s request for rent or the posting of a undertaking or bond. It felt the remedy for any “over or underpayment” was a “speedy trial.”
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DECISION