Barash v. Pennsylvania Terminal Real Estate Corp.

McGivern, J. The plaintiff, an attorney, is a tenant of a suite of offices in a newly constructed, completely air-conditioned office building, the walls and outer surfaces of which are sealed glass windows. Internally, the supply and circulation of air are exclusively under the control of the landlord. This suit is against the landlord-owner of the building seeking: (a) the right of tenant to be relieved of rent during such time as he is actually and partially evicted from the premises due to the absence of ventilated air, and (b) reformation of the lease so that it will conform with the true understanding of the parties thereto, i.e., that he will be afforded ventilation during all times wherein he has access to the building. The burden of the complaint is that defendant’s agents induced plaintiff to lease his office by representing he would have ventilation at all times, that he would have at all times access to the premises and ¡24-hour elevator service. And but for that representation he would not have leased his office, as in the manner of many attorneys, he was wont, to work in the evenings and on weekends. Thus runs the plaintiff’s grievance. But he says that after 6:00 p.m. and on weekends the air is unbreathable, the office untenantable and the premises uninhabitable. Defendant stands on its construction of the lease, claiming its obligation to provide air-cooling is limited to 9:00 a.m. to 6:00 p.m. in the summer months on business days and ventilation ‘ ‘ at other times during business days and similar hours. ’ ’ Although, by letter dated June 19, 1968, the landlord offers the plaintiff ventilation at the rate of $25 per hour. Special Term has found the complaint acceptable. So do we. In our judgment, for such times as the air is unbreathable the premises do become in fact untenantable and for such times the plaintiff has sustained an actual partial eviction. And the relief requested, namely the suspension of the payment of rent under the lease during the period wherein he is deprived of the use and enjoyment of his leasehold, does not seem to be unreasonable. And it is countenanced by precedents both venerable and recent. (Christopher v. Austin, 11 N. Y. 216, 218; Edgerton v. Page, 20 N. Y. 281; Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370; Two Rector St. Corp. v. Bein, 226 App. Div. 73; Kusche v. Sabin, 6 N. Y. S. 2d 771, 773.) As was stated by the court, in its opinion, in Edgerton v. Page (supra, p. 283): “ The rule has long been settled, that a wrongful eviction of the tenant by the landlord, from the whole or any part of the demised premises, before the rent becomes due, precludes a recovery thereof until the possession is restored. (Christopher v. Austin, 1 Kern. 217.) ” Succinctly, the law was affirmed by [344] Cardozo, J., in the Fifth Ave. Bldg. Co. case (supra, p. 373): ‘‘If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not -permitted to apportion his own wrong.” In our view, the predicament of the plaintiff should have^ been, or was envisaged by the landlord. We have here an ultramodern, late 20th century, monolithic style building, designed to 'be completely impervious to outside air, like the tomb of a pharaoh. The windows cannot be opened, although the lease mentions “ ventilation ” in a not unambiguous phrase. By letter dated May 17, 1968, however, the tenant is assured that ‘ ‘ there is a noticable flow of air through the system after the hour of 6 p.m.”. Then 'by subsequent letter, June 19, 1968, he is offered off-hours ventilation at the rate of $25 per hour, dehors the lease. We must observe that even if the plaintiff attorney were recompensed for his professional labors at the rate of $25 per hour, such efforts would avail him naught financially, if he chose' to work during the evening or on • weekends. It is also our thought that the Administrative Code of the City of New York dictates that all tenants -be afforded access to breathable air, without any extra charge beyond that set forth in the lease. See, sections (5.1.1) and 026-258.0 and (5.1.9) and C26-266.0 on the subject of ventilation. These sections speak of ventilation for “human occupancy ”, “either from windows or from mechanical means ”. Thus, perforce, we take the next step and find that without breathable air the plaintiff has not been afforded what the code exacts and that legally he has been actually and partially evicted. This case, to our knowledge, is sui generis, arising out of the technological age wherein we live. The precedents cited by the minority bear no true factual parallel with the situation before us. They do not deal with, nor did they envisage a hermetically sealed building, the rented quarters of which, without air or ventilation, become uninhabitable, precluding human use. This state we equate with the principles -underlying the doctrine of actual partial eviction, permitting the suspension of payment of rent, during the uninhabitable period. Thus, we affirm the order of Special, Term sustaining the sufficiency of the complaint.