Arpino v. Cicciaro

• Decision Date: 20 December 2012
• Docket Number: No. 2011–2161SC.,2011–2161SC.
• Citation: Arpino v. Cicciaro, 38 Misc.3d 129, 967 N.Y.S.2d 865, 2012 N.Y. Slip Op. 52392 (N.Y. App. Div. 2012)
• Parties: Carla ARPINO and Vincent Bove Residuary Trust, Respondents, v. Daniel J. CICCIARO and Dano's Auto Clinic, Inc., Appellants, and “John Doe” and “JANE DOE”, Undertenants.
• Court: New York Supreme Court — Appellate Division

38 Misc.3d 129

967 N.Y.S.2d 865

2012 N.Y. Slip Op. 52392

Carla ARPINO and Vincent Bove Residuary Trust, Respondents,

v.Daniel J. CICCIARO and Dano's Auto Clinic, Inc., Appellants, and “John Doe” and “JANE DOE”, Undertenants.

No. 2011–2161SC.

Supreme Court, Appellate Term,

Second Department,

9th and 10th Judicial Districts.

Dec. 20, 2012.

OPINION TEXT STARTS HEREPresent: MOLIA, J.P., NICOLAI and IANNACCI, JJ.

Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), entered April 14, 2009. The final judgment, after a nonjury trial, awarded landlords possession and the sum of $47,327.14 in a commercial nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Tenants defended this commercial nonpayment summary proceeding on the ground that they had been partially constructively evicted from the subject premises, which consisted of office space, a workshop and a bathroom. At trial, tenant Daniel Cicciaro testified that, because landlord had installed an inadequate heating system, his ability to use the workshop for its intended purpose during the colder months of the year had been drastically reduced. The District Court held that, because tenants had not abandoned the subject property, there was no constructive eviction.

“Where the tenant remains in possession of the demised premises there can be no constructive eviction” (Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82 [1970] ). A partial constructive eviction has been found where a residential...