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Carla Arpino and Vincent Bove Residuary Trust v. Daniel J. Cicciaro and Dano's Auto Clinic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 20, 2012

CARLA ARPINO AND VINCENT BOVE RESIDUARY TRUST,
RESPONDENTS, --
v.
DANIEL J. CICCIARO AND DANO'S AUTO CLINIC, INC., APPELLANTS, -AND- "JOHN DOE" AND "JANE DOE",
UNDERTENANTS.

Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), entered April 14, 2009.

Arpino v Cicciaro

2012 NY Slip Op 52392(U)

Decided on December 20, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The final judgment, after a non-jury trial, awarded landlords possession and the sum of $47,327.14 in a commercial nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Tenants defended this commercial nonpayment summary proceeding on the ground that they had been partially constructively evicted from the subject premises, which consisted of office space, a workshop and a bathroom. At trial, tenant Daniel Cicciaro testified that, because landlord had installed an inadequate heating system, his ability to use the workshop for its intended purpose during the colder months of the year had been drastically reduced. The District Court held that, because tenants had not abandoned the subject property, there was no constructive eviction.

"Where the tenant remains in possession of the demised premises there can be no constructive eviction" (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82 [1970]). A partial constructive eviction has been found where a residential tenant completely lost the use of a terrace for a period of 32 months (see Oresky v Azzoni, 232 AD2d 463 [1996]). In the commercial context, a partial constructive eviction has been found where a tenant lost vehicular access to a loading dock, although the tenant was not physically barred from the area in question (see KRU, Inc. v 1000 Massapequa, 238 AD2d 314 [1997]). Here, where tenants have not claimed that they have abandoned the workshop area of the subject property, but proffered testimony that it has been used for its intended purposes, albeit for a drastically reduced amount of time each day during the colder months of the year, there has been no abandonment. Consequently, the District Court correctly found that there was no partial constructive eviction.

Accordingly, the final judgment is affirmed.

Nicolai and Iannacci, JJ., concur.

Molia, J.P., taking no part. Decision Date: December 20, 2012

20121220

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