ROSKE ASSOCIATES LLP v. ESRT EMPIRE STATE BUILDING LLC (2026)

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

H. ROSKE & ASSOCIATES LLP, Plaintiff–Appellant, v. ESRT EMPIRE STATE BUILDING LLC, Defendant–Respondent.

7143

Decided: October 06, 2026

Mendez, J.P., Rodriguez, Pitt–Burke, Rosado, JJ.

H. Roske & Associates LLP, New York (Steven A. Lucia of counsel), for appellant. Dewey Pegno & Kramarsky, LLP, New York (David S. Pegno of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Lyle E. Frank, J.), entered June 6, 2025, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Supreme Court properly granted defendant's motion because plaintiff, a commercial tenant, expressly waived its constructive eviction rights in the lease and is therefore precluded from now asserting a constructive eviction cause of action (see 558 Seventh Ave. Corp. v E & B Barbers Inc., 237 AD3d 635, 636 [1st Dept 2025]; Schwartz, Karlan & Gutstein v 271 Venture, 172 AD2d 226, 228 [1st Dept 1991] ). Even if plaintiff had not waived its rights, the claim was not sufficiently alleged in the complaint, and the affidavits do not explain how plaintiff was “substantially and materially deprive[d] ․ of the beneficial use and enjoyment of the premises” such that it was constructively evicted (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]; see Flatiron 30 LLC v Continuum Co. LLC, 227 AD3d 463, 464 [1st Dept 2024]; cf. Koretz v 363 E. 76th St. Corp., 178 AD3d 445, 446 [1st Dept 2019]; Minjak Co. v Randolph, 140 AD2d 245, 246–247 [1st Dept 1988] ).

The complaint was also properly dismissed because plaintiff does not identify any provision of the lease that was breached (see e.g. 75 First Ave. Club LLC v United Glass Sys. Corp., 223 AD3d 491, 493 [1st Dept 2024]; Kraus v Visa Intl. Serv. Assn., 304 AD2d 408, 408 [1st Dept 2003] ).

In view of the foregoing, we need not reach the remaining arguments.

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