ZUREL INC v. MAGNUM REALTY CORP (2001)

In an action, inter alia, to recover damages for constructive eviction, the defendant appeals from a judgment of the Supreme Court, Nassau County (Martin, J.), entered October 21, 1999, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $70,000.

ORDERED that the judgment is affirmed, with costs.

Contrary to the defendant's contentions, the court properly limited the defense counsel from commenting in summation about a certain lease provision, since there was no credible evidence to support the application of this provision (see, Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 26 N.E. 1048;  Siegel, N.Y. Prac. § 397, at 637 [3rd ed.]).

 Further, the defendant's contention that the plaintiff waited too long before vacating the premises to recover damages for constructive eviction is without merit.   The plaintiff moved its entire business within four months of the culminating event which substantially and materially deprived it of the beneficial use and enjoyment of the premises.   A delay of three or four months for a commercial tenant to move in an orderly fashion may be considered reasonably prompt (see, S.E. Nichols, Inc. v. New Plan Realty Trust, 160 A.D.2d 251, 553 N.Y.S.2d 359;  Leider v. 80 William St. Co., 22 A.D.2d 952, 255 N.Y.S.2d 999).

The defendant's remaining contentions are without merit.