Fourth Avenue Management Corporation, Appellant, v. Cornelius Mallon et al., Respondents, 21 A.D.2d 685

In an action to recover rent, in which the defendants in effect asserted as a defense their constructive eviction in consequence of the plaintiff’s breach of the terms of the lease, and in which the defendants counterclaimed for the return of their security of $290, the plaintiff, by permission of this court, appeals from an order of the Appellate Term of the Supreme Court, dated October 30, 1962, which affirmed: (1) a judgment of the Municipal Court of the City of New York, entered June 19, 1961 after a nonjury trial, dismissing the complaint and awarding judgment to the defendants on their counterclaim; and (2) an order of said court, dated April 25, 1961, which denied plaintiff’s motion for a new trial.

Order of the Appellate Term and judgment of the Municipal Court reversed on the law and the facts, without costs but with disbursements of the appeal to the plaintiff, and judgment directed in plaintiff’s favor for $1,305, the claimed unpaid rent, with appropriate interest thereon and the costs of the action in the Municipal Court and the disbursements of the appeal in this court. Findings of facts implicit in the said order and judgment which are inconsistent herewith are reversed, and new findings are made as indicated herein.

In our opinion the finding, implicit in the judgment of the Municipal Court and in the order of the Appellate Term, that the defendants established their defense of constructive eviction, is contrary to the weight of the credible evidence. On the basis of all the proof adduced, we find that the plaintiff’s breach of the terms of the lease was not so material or extensive as to constitute the constructive eviction of the defendants (cf. Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Seaboard Realty Co. v. Fuller, 33 Misc. 109; Bromberger v. Empire Flashlight Co., 138 Misc. 754).

Accordingly, the plaintiff is entitled to the coneededly unpaid rent under the lease. In view of this disposition, the plaintiff’s original appeal from the order of the Municipal Court denying plaintiff’s motion for a new trial is academic. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.