NYC Goetz Realty Corp. v Martha Graham Ctr. of Contemporary Dance

NYC Goetz Realty Corp. v Martha Graham Ctr. of Contemporary Dance 2007 NY Slip Op 03333 [39 AD3d 356] April 19, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

NYC Goetz Realty Corp., Appellant,
v
Martha Graham Center of Contemporary Dance, Respondent. Martha Graham Center of Contemporary Dance, Counterclaim Plaintiff-Respondent, v NYC Goetz Realty Corp., Counterclaim Defendant-Appellant, and et al., Counterclaim Defendant.

—[*1] Lederman Abrahams & Lederman, LLP, Massapequa (Bruce H. Lederman of counsel), for appellant.

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Darren W. Johnson of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered November 6, 2006, which denied plaintiff landlord's motion for partial summary judgment on the issue of defendant tenant's liability for breach of lease, and dismissing defendant's affirmative defenses and counterclaims, unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

Whether a landlord's renovation work is of such character as to justify a tenant's abandonment of the premises is normally a question of fact (see Townhouse Co., LLC v Plotkin, 12 AD3d 269 [2004]). Here, however, tenant failed to put forth specific evidence of conditions rising to the level of constructive eviction. The February 2005 letter is insufficient to establish a constructive eviction in August 2005. Thus, there are no issues of fact and summary judgment should have been granted in favor of the landlord. [*2]

The remaining conditions complained of were tenant's responsibility under the lease. Concur—Mazzarelli, J.P., Friedman, Buckley, Catterson and Malone, JJ.