II. Legal Standard for Constructive Eviction in New York

 

 

 

A. Full Constructive Eviction

 

 

Under New York State common law, constructive eviction occurs when a landlord, through acts or omissions, substantially interferes with the tenant s use and enjoyment of the premises, effectively forcing the tenant to vacate. The key elements are:

 

1. Substantial interference with the use and enjoyment of the premises;
2. The interference is attributable to the landlord s actions or failure to act;
3. The tenant vacates the premises within a reasonable time.

 

 

See Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970).

 

 

 

 

III. Partial Constructive Eviction: Legal Considerations

 

 

A partial constructive eviction occurs when the landlord s interference affects only a portion of the leased premises, but the tenant remains in possession of the rest. In such cases, courts have recognized the doctrine in a modified form.

 

 

A. Case Law: Recognition of Partial Constructive Eviction

 

 

In Minjak Co. v. Randolph, 140 A.D.2d 245 (1st Dep t 1988), the Appellate Division held that a tenant may assert a partial constructive eviction and be entitled to a partial rent abatement, even where the tenant does not fully vacate the premises.

 

The court stated:

 

[W]here a tenant has been actually ousted from a portion of the premises, a constructive eviction has occurred as to that portion, and the tenant is relieved of the obligation to pay rent for that part.

 

Courts have since extended this reasoning to cover interference-based partial evictions, including noise, fumes, flooding, or disruption of access to part of a commercial unit.

 

 

B. Rent Abatement as a Remedy

 

 

In a partial constructive eviction, the tenant may be entitled to a proportionate abatement of rent, provided the interference is serious and ongoing. However, abatement does not always follow automatically tenants must prove:

 

• The scope and duration of the impairment,
• That the interference is attributable to the landlord,
• That the impairment meaningfully affects business use.

 

 

 

C. Continued Occupancy and Waiver

 

 

Tenants must not waive their rights by accepting the condition for an extended period without protest. However, full vacatur of the premises is not required for partial constructive eviction (Minjak, supra).

 

 

 

 

IV. Distinctions: New York City Law

 

 

 

A. Implied Covenant of Habitability Not Applicable

 

 

Under New York City Administrative Code 27-2004, the implied warranty of habitability (as codified in RPL 235-b) applies only to residential leases. Therefore, commercial tenants cannot rely on the statutory warranty of habitability but must rely solely on:

 

• Common law principles (e.g., constructive eviction),
• Express lease covenants (e.g., quiet enjoyment),
• Any applicable local construction or building codes that may bear on habitability.

 

 

 

B. NYC Administrative Requirements and Land Use

 

 

While New York City laws, such as the Building Code and Zoning Resolution, do not expressly provide commercial tenants with additional constructive eviction remedies, they may serve as evidence of landlord noncompliance or negligence when:

 

• Illegal alterations prevent lawful commercial use,
• Code violations directly impact a tenant s licensed operations,
• NYC DOB or FDNY orders force partial closure.

 

 

Illustration: A food service tenant unable to operate due to landlord s failure to remedy a DOB-mandated fire egress violation may support a partial constructive eviction claim.

 

 

 

 

V. Defenses and Landlord Considerations

 

 

Landlords defending a constructive eviction claim may assert:

 

• Lack of causation: The interference is due to third parties or external factors (e.g., neighboring construction).
• Tenant consent or waiver: The tenant accepted the condition or remained silent too long.
• No substantial interference: Minor inconvenience or temporary disruptions do not suffice.
• Force majeure or impossibility: Especially where city mandates or emergencies caused the interference.

 

 

Additionally, landlords should consider mitigation efforts (repairs, alternative space, rent credits) as evidence of good faith.

 

 

 

 

VI. Commercial Lease Clauses to Review

 

 

When analyzing a partial constructive eviction dispute, the following lease provisions are critical:

 

1. Quiet enjoyment clause often implicated in constructive eviction claims.
2. Covenants to repair or maintain determines who bears responsibility.
3. Force majeure provisions may affect liability for interference.
4. Rent abatement clauses sometimes negotiated in the event of partial unavailability.
5. Exclusive use and access rights important for interference analysis.

 

 

 

 

 

VII. Conclusion

 

 

Partial constructive eviction is a viable claim for commercial tenants in New York under certain circumstances, particularly when a portion of the leased premises is rendered unusable due to the landlord s conduct or failure to act. Although New York City law does not provide special statutory rights for commercial tenants, local building codes and agency findings may strengthen a tenant s common law claim. Courts will scrutinize whether the interference was substantial, landlord-caused, and whether the tenant acted promptly and did not waive rights through inaction.

 

For landlords, the best defense is prompt remediation, documentation of third-party causes, and express lease language limiting abatement remedies.