Eastside Exhibition Corp. v.

210 EAST 86TH STREET CORP. 942 N.Y.S.2d 19 (2012)

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Nature of the Case

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Facts

P entered into a lease with D to occupy two floors in D's seven-story retail and office building to operate a multiplex movie theater with 1,150 seats and four screens. Article 13 of the lease permits the landlord to enter the demised premises to make repairs and improvements and provides that there be no abatement of rent during the time such work is in progress. Article 4 of the lease provides that there be no allowance to the tenant for the diminution of rental value arising from the making of any repairs or improvements. Without notice or receiving permission, D entered the premises and installed cross-bracing between two existing steel support columns on both the floors causing a change in the flow of patron foot traffic on the first floor and a slight diminution of the second-floor waiting area. The cross-bracing was needed for the addition of two additional floors to the building. P ceased paying rent and commenced this action, seeking a permanent injunction barring D from doing any further work in the premises and directing D to remove the cross-bracing. P sought an abatement of its rent obligation. The total area of the premises was between 15,000 and 19,000 square feet, and the cross-bracing occupied approximately 12 square feet. The Supreme Court dismissed P's claim and entered judgment for D for unpaid rent. The court held that the taking of 12 square feet of non-essential space in P's lobby constituted a de minimis taking not justifying a full rent abatement. The Supreme Court dismissed P's claim and entered judgment for D for unpaid rent. The court held that the taking of 12 square feet of non-essential space in P's lobby constituted a de minimis taking not justifying a full rent abatement. The Appellate Division held that there is no de minimis exception to the rule that any unauthorized taking of the demised premises by the landlord constitutes an actual eviction. The court declined to award plaintiff a full rent abatement. It held the remedy is to compensate P for its actual damages. On remand, P proffered two witnesses, who were unable or unwilling to estimate actual damages. The Supreme Court found that P failed to establish any damages and made no award to P. The Appellate Division affirmed. P appealed.