Clarke v. Fifth Ave. Dev. Co., LLC, 211 A.D.3d 460 (2022)

As to the causes of action for breach of the warranty of habitability and partial constructive eviction, an issue of fact exists as to whether plaintiffs unreasonably rejected an offer of alternative accommodation in a second-floor apartment while repairs were being done on the elevator, thus precluding summary judgment on both claims. Additionally, a tenant cannot claim constructive eviction while remaining in full possession of the leased premises (127 Rest. Corp. v Rose Realty Group, LLC, 19 AD3d 172, 172 [1st Dept 2005]), and the record presents issue of fact regarding whether plaintiffs remained in possession of the apartment — for example, whether they surrendered their keys when they left to stay at a different residence and whether they intended to permanently vacate the apartment. Those same issues of fact prevent dismissal of defendants' counterclaims for rent arrears and counsel fees.