When has a landlord materially deprived its commercial tenant of an expected and intended use of a premises, as required for constructive eviction?  The Supreme Court of New York, Appellate Division for the First Department recently addressed this question.  Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167 (N.Y. App. Div. 2010).

In that case, a commercial tenant could not use the premises because the elevator was not functioning  for a seven week period. The court recognized that under certain circumstances, an elevator outage for that long could result in a constructive eviction.

The court set forth the elements necessary to establish constructive eviction as follows:

A tenant need not prove physical expulsion, but must prove wrongful acts by the landlord that substantially and materially deprive the tenant of the beneficial use and benefit of the premises. [citation omitted]

Id. at 172

In its holding in favor of the landlord and against the tenant, the court noted that no evidence was submitted concerning the deleterious effect it had on the tenant. The mere fact that the elevator was not functional was inadequate; there had to also be a showing that it impaired the tenant’s use of the building in a manner that was sufficient to establish a constructive eviction. In other words, that the tenant was unable to access the premises as it needed to during that seven week period. Id. at 173.

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