Deprivation of easements or appurtenances; Sulken v. Love, 135 Misc. 637 (Mun. Ct.
1930); Kingsway Realty and Mortgage Corp v. Kingsway Repair Corp, 223 AD 281
(Second Dept 1928).
Tenant herein has failed to establish her burden of proof of breach of quiet
enjoyment or partial constructive eviction. Tenant raises many issues regarding the premises.
However, based on her presentation, manner and order of her testimony, significant portions of
Tenant's testimony are not credible. The defects she does prove are not sufficiently substantial to
deprive her of the intended use and enjoyment of the leased premises and are not tantamount to a
constructive eviction under the law.
The Court rejects Tenant's claims of partial constructive eviction from the kitchen,
bedroom, den, living room and dining room. The Court finds her family ate meals in the kitchen
and used the kitchen for homework. The use of a garage refrigerator and her placement of
lighting to supplement broken ceiling lights belie her assertion that the kitchen was not utilized.
Both Respondent's witnesses described a bedroom with a made bed, carpet/rug,
antique desk and books. There was no mention of a musty smell. Nor did "Mr. P" describe
[*4]dripping water, water damage to furniture or rug/carpet, a
bucket or furniture out of place. Tenant failed to meet her burden she was constructively ousted
from this room. The Court similarly finds the Respondent put up a curtain in the den to allow her
to more comfortably use the den, living and dining rooms because she did not like to view the
construction site.
Tenant failed to establish the construction rose to the level of breach of covenant of
quiet enjoyment and partial constructive eviction of the outside portion of the premises. If