Upper east side movie goers as well as commercial leasing lawyers will be interested in the recent opinion from New York’s Court of Appeals in Eastside Exhibition Corp v. 210 East 86th Street Corp. The landlord braced the interior of the theater’s waiting room, taking away about 12 sq ft., in anticipation of adding two new stories to the building. The tenant sued for a complete abatement of rent based on New York’s very old common law rule that even a minor partial “eviction” is cause for a full rent abatement. The Court disagreed saying the 12 feet was too inconsequential to have all rent forgiven but did not take the opportunity to overturn the old partial eviction rule. Seems a bit bizarre to risk losing all rent for a minor intrusion. Why not just a proportion? For us mere mortal lawyers, we will still need to figure out on a case by case basis how much of a partial eviction is “trifling” because if we are wrong, all rent could be abated.
PartnerTom represents owners, operators and developers in the acquisition, financing, development, ground leasing, and sale of significant properties. His experience includes office towers, commercial condominiums, industrial ...