Game Sportswear, Inc. v. Ernest Simons Co.

—In an action, inter alia, to recover damages for constructive eviction, the defendant appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered June 19, 1998, which, after a nonjury trial, awarded the plaintiff the principal sum of $23,000 and dismissed its counterclaim. 261 Ordered that the judgment is modified, on the law, by deleting the first decretal paragraph thereof awarding the plaintiff damages in the principal sum of $23,000 and substituting therefor a decretal paragraph dismissing its causes of action to recover damages; as so modified, the judgment is affirmed, without costs or disbursements. The Supreme Court correctly concluded that the plaintiff proved the requisite elements of a constructive eviction (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Johnson v Cabrera, 246 AD2d 578; Hayden Co. v Kehoe, 177 App Div 734). Accordingly, the court properly determined that the plaintiff was excused from its remaining contractual liability under its lease (see, Johnson v Cabrera, supra) and that the defendant’s counterclaims for damages should be dismissed. However, the plaintiff failed to establish, prima facie, its entitlement to damages and thus its causes of action to recover damages are dismissed (see, Barleo Homes v Tudomawr Corp., 214 AD2d 694; Kornhuber v State of New York, 196 AD2d 629). Bracken, J. P., S. Miller, Krausman and H. Miller, JJ., concur.