Similarly, Tenant testified the construction prevents her from using patio furniture
and the outdoor areas. There was no testimony detailing in what manner her use of the outdoor
portion of the premises was curtailed during the colder months Tenant has put at issue. Tenant
submitted photographs of the adjacent lot detailing the large vehicles, excavation, and
construction. (Respondent's Exhibits J, K-1, K-2, K-3, M-1, M-2, N-1, N-2, N-3, N-4, P-1, P-2,
O-1, O-2, O-3, O-4, O-5)
Nonpayment Petition
The
Nonpayment Petition is granted subject to the following findings of fact and conclusions of law.
Breach of Covenant of Quiet
Enjoyment and Constructive Eviction
A covenant for quiet enjoyment by a lessor is implicit in a lease. Edgerton v.
Page 20 NY 281 (1859). To establish a case of breach of the covenant of quiet enjoyment a
tenant must show the landlord's conduct substantially and materially deprived the tenant of the
beneficial use and enjoyment of the premises for the purposes for which they were leased.
Barash v. Pennsylvania Term Real Estate Corp, 26 NY2d 77(19 ); Davies, Turner &
Company v. Harry Schatzen 124 Misc. 170 (NY Sup Ct 1924). A tenant may assert as a
defense to nonpayment the doctrine of partial constructive eviction from a portion of the
premises; the portion must be unusable by the tenant even if there is no actual abandonment.
Minjak v. Randolph, 140 AD2d 245 (AD First Dept. 1988). In general, a tenant may not
claim constructive eviction if a landlord builds on an adjoining lot absent lease provisions to the
contrary. A landlord has a right to build on and utilize his/her property in the same manner as an
uninvolved third party. See Generally, 52A CJS Landlord & Tenant Section 969