Mercer Sq., LLC v Namdor, Inc., 2024 NY Slip Op 05029 [231 AD3d 521]

October 10, 2024

Appellate Division, First Department

[*1]

Mercer Square, LLC, Respondent-Appellant,

v

Namdor, Inc., et al., Appellants-Respondents.

Greenberg Traurig, LLP, New York (Hal N. Beerman of counsel), for appellants-respondents.

Gallet Dreyer & Berkey, LLP, New York (Jerry A. Weiss of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 23, 2023, which, insofar as appealed from as limited by the briefs, denied defendants’ cross-motion for summary judgment on the ninth affirmative defense and first counterclaim for constructive eviction and for spoliation sanctions against plaintiff, and denied plaintiff’s motion for summary judgment dismissing defendants’ constructive eviction affirmative defense and counterclaim, unanimously affirmed, without costs.

Summary judgment was properly denied as to both defendants and plaintiff on the constructive eviction defense and counterclaim. The court properly found that issues of fact remain as to whether plaintiff landlord’s allegedly wrongful acts “substantially and materially deprive[d] [defendant tenant] of the beneficial use and enjoyment of the premises” ( Pacific Coast Silks, LLC v 247 Realty, LLC , 76 AD3d 167 , 172 [1st Dept 2010] [internal quotation marks omitted]; see also Black Quarry Millwork, LLC v Sandy Littman Realty Corp. , 222 AD3d 548 , 549-550 [1st Dept 2023]).

The court providently exercised its discretion in denying the request for spoliation sanctions against plaintiff landlord based on its replacement of the roof ( see Jihuan Xiao v Lifeng Jiang , 228 AD3d 546 [1st Dept 2024]). Concur—Kern, J.P., Oing, Kennedy, Higgitt, Michael, JJ..