
    [658 NYS2d 162]
    West Broadway Glass Company, Appellant, v I.T.M. Bar Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    December 20, 1996
    APPEARANCES OF COUNSEL
    
      Bragar & Wexler, P. C., New York City (Raymond A. Bragar of counsel), for appellant. Wormser, Kiely, Galef & Jacobs, New York City (Alan M. Warshauer of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Final judgment entered August 21, 1995 affirmed, with $25 costs.

The commercial premises was demised for use as a "first class” bar establishment. In order to allow for extensive renovations and construction within the premises, tenant was granted a six-month rent abatement. Because of water penetration emanating from a restaurant occupying the adjacent store and floor above tenant’s space, as well as recurring sewer backups from the common waste line, the parties stipulated that tenant would receive an additional four-month abatement (through Oct. 1994). The stipulation was expressly made not applicable to any claim by tenant for future damages.

In this nonpayment proceeding for the subsequent period November 1994 through March 1995, the record supports Civil Court’s findings that the "persistent and severe” water problems continued to recur and prevented tenant from opening for business during the period in suit. A constructive eviction exists where the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83). The requirement of an abandonment of the leasehold is certainly met in circumstances where the conditions complained of delayed tenant’s renovations and where the inability to commence operations is directly traceable to these conditions (see, Manhattan Mansions v Moe’s Pizza, 149 Misc 2d 43). Whether a constructive eviction has occurred is generally a question of fact for the trier of fact (Melbourne Leasing Co. v Jack LaLanne Fitness Ctrs., 211 AD2d 765, 767). We find no cause to disturb Civil Court’s resolution of the fact issues where landlord was cognizant of the leaks and sewer backups even prior to the letting to the tenant and where landlord’s own correspondence in January and February 1995 reflects the "ongoing problem that is disrupting the tenant’s business and causing damage to their establishments”. Accordingly, the petition for rent was properly dismissed.

McCooe, J. P.

(dissenting in part). I agree with the trial court in finding a breach of lease but disagree with its awarding a total rent abatement. I disagree with the majority’s finding that the tenant abandoned the premises which was a necessary element of its conclusion that a constructive eviction was effected.

The trial court granted a total rent abatement on a breach of lease theory. Damages resulting from a breach of a duty to repair is not an excuse for a nonpayment of rent. (See, 2 Rasch, New York Landlord and Tenant — Summary Proceedings § 18.30 [3d ed].) The independent obligation to pay rent continues so long as tenant remains in possession and is not suspended because of the landlord’s alleged failure to make certain repairs on the premises. (400 Madison Ave. Ltd. Partnership v Etno, Inc., NYLJ, Apr. 27, 1994, at 24, col 5.) The damages recoverable for a breach of a covenant to repair are measured by contract damages, or the diminution in the rental value of the leased premises. (74 NY Jur 2d, Landlord and Tenant, § 113.) The trial court awarded a total rent abatement without any calculation of the damages actually incurred.

The majority finds a constructive eviction although the trial court did not make any such factual finding. A constructive eviction requires a showing that the tenant abandoned the premises due to the wrongful acts of the landlord which deprived it of the use and enjoyment of the premises. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77.) There was no physical abandonment of the premises by the tenant, only an alleged delay in opening the restaurant. Renovations were continuing during the period in dispute which indicated an intent to remain rather than to abandon the premises. Furthermore, the abandonment must take place without unreasonable delay, a fact not present here. (GSL Enters. v Bella Carla Fashions, NYLJ, Aug. 28, 1996, at 22, col 2.)

The issue is what constitutes an abandonment. The functional loss of all or part of the premises does not constitute an abandonment. (Parkchester Apts. Co. v Metropolitan Retail Recovery, NYLJ, Nov. 23, 1994, at 2, col 4.) A delay in opening the restaurant due to the fault of the landlord does not constitute an abandonment. I disagree with Manhattan Mansions v Moe’s Pizza (149 Misc 2d 43), relied upon by the majority, which is contrary to the weight of authority as to what constitutes an abandonment. In any event, the finding of abandonment in that case was based upon a pizza parlor closing a few times a week because of damage caused by leaks. Assuming, arguendo, that a temporary closing is synonymous with abandonment, even that minimal discontinuance of business is absent here.

The judgment should be modified to the extent of directing an assessment of damages for the breach of lease.

Freedman and Davis, JJ., concur; McCooe, J. P., dissents part in a separate memorandum.  