225 E. 64th St., LLC v. Prystowsky

• Decision Date: 14 June 2012
• Citation: 947 N.Y.S.2d 27,2012 N.Y. Slip Op. 04829,96 A.D.3d 536
• Parties: 225 EAST 64TH STREET, LLC, Plaintiff–Respondent–Appellant, v. Janet H. PRYSTOWSKY, M.D. P.C., Defendant/Third–Party Plaintiff–Appellant–Respondent, v. Noyack Medical Partners LLC, et al., Third–Party Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 536

947 N.Y.S.2d 27

2012 N.Y. Slip Op. 04829

225 EAST 64TH STREET, LLC, Plaintiff–Respondent–Appellant,

v.Janet H. PRYSTOWSKY, M.D. P.C., Defendant/Third–Party Plaintiff–Appellant–Respondent,

v.Noyack Medical Partners LLC, et al., Third–Party Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 14, 2012.

Shebitz Berman Cohen & Delforte, P.C., New York (Frederick J. Berman of counsel), for appellant-respondent.

Andrew Greene & Associates, P.C., White Plains (Paul T. Vink of counsel), for respondent-appellant and respondents.

ANDRIAS, J.P., FRIEDMAN, SWEENY, MANZANET–DANIELS, ROMÁN, JJ.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 12, 2011, which, insofar as appealed from as limited by the briefs, granted so much of plaintiff's motion for summary judgment as sought to dismiss defendant's affirmative defenses, counterclaims and third-party claims of constructive eviction due to an alleged fire code violation and due to plaintiff's failure to provide proper air conditioning and ventilation during a roof repair to the extent defendant seeks to recover for the period following the completion of the repair, and defendant's third-party claims for fraud and nuisance, and denied so much of plaintiff's motion as sought summary judgment on its claim for unpaid rent, and granted defendant's motion for summary judgment on its eighth affirmative defense and first counterclaim to the extent they allege constructive eviction due to plaintiff's failure to provide proper air conditioning and ventilation during the aforesaid roof repair, on its counterclaim for breach of the covenant of quiet enjoyment, and on its counterclaim for the return of its security deposit, unanimously modified, on the law, to grant plaintiff's motion as to defendant's affirmative defense of accord and satisfaction, and otherwise affirmed, without costs.

Defendant was prevented from using the demised premises, which it leased from plaintiff, for most of the period during which the owner of the building performed repairs to the area of the roof directly above and adjacent to those premises. Although plaintiff assured defendant that its dermatological practice would not be disturbed by the roof repair, the demised premises became unusable due, in part, to the poor air quality, and when plaintiff's attempts to resolve the problem failed, defendant was forced to find another location in which to operate a portion of its practice. Since plaintiff failed to meet its responsibility for supplying defendant with air conditioning and proper ventilation, defendant is entitled to summary judgment on its claim of constructive eviction during the approximately one-month period in which the roof...