JOSEPH DAY REALTY CORP v. FRANCISCAN SISTERS FOR POOR HEALTH SYSTEM INC (1998)

Supreme Court, Appellate Division, First Department, New York.

JOSEPH P. DAY REALTY CORP. Plaintiff-Appellant, v. FRANCISCAN SISTERS FOR the POOR HEALTH SYSTEM, INC., Defendant-Respondent.

Decided: December 15, 1998

Before LERNER, P.J., and SULLIVAN, MILONAS, ROSENBERGER and ELLERIN, JJ.

Amos Weinberg, for Plaintiff-Appellant. Terrence P. O'Reilly, for Defendant-Respondent.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about June 3, 1998, which, in an action to recover rent, denied plaintiff's motion to dismiss defendant's claims of constructive eviction, unanimously affirmed, with costs.

Whether defendant failed to abandon the premises with reasonable promptness after plaintiff's alleged wrongful failure to provide services and perform acts called for under the parties' leases, and thereby waived the right to claim constructive eviction, is an issue of fact (see, Leider v. 80 William St. Co., 22 A.D.2d 952, 255 N.Y.S.2d 999). It is unclear when, if ever, the conditions that allegedly caused defendant to abandon the premises became so severe as to necessitate the abandonment.

MEMORANDUM DECISION.

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