MERCER SQUARE LLC v. NAMDOR INC (2024)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 23, 2023, which, insofar as appealed from as limited by the briefs, denied defendants’ cross-motion for summary judgment on the ninth affirmative defense and first counterclaim for constructive eviction and for spoliation sanctions against plaintiff, and denied plaintiff's motion for summary judgment dismissing defendants’ constructive eviction affirmative defense and counterclaim, unanimously affirmed, without costs.

Summary judgment was properly denied as to both defendants and plaintiff on the constructive eviction defense and counterclaim.  The court properly found that issues of fact remain as to whether plaintiff landlord's allegedly wrongful acts “substantially and materially deprive[d] [defendant tenant] of the beneficial use and enjoyment of the premises” (Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172, 904 N.Y.S.2d 407 [1st Dept. 2010] [internal quotation marks omitted];  see also Black Quarry Millwork, LLC v. Sandy Littman Realty Corp., 222 A.D.3d 548, 549–550, 200 N.Y.S.3d 10 [1st Dept. 2023]).

The court providently exercised its discretion in denying the request for spoliation sanctions against plaintiff landlord based on its replacement of the roof (see Jihuan Xiao v. Lifeng Jiang, 228 A.D.3d 546, 212 N.Y.S.3d 338 [1st Dept. 2024]).