While the main lease requires the landlord to supply heat, nothing therein or the sublease, which was made subject to the main lease, requires the main tenant to do so. Thus, if, as the subtenant contends, the lack of heat in the premises is due to a broken HVAC, and if the repairs required to the HVAC are structural within the meaning of the main lease, then the obligation to repair the HVAC is the landlord's, not the main tenant's. Absent a covenant to repair the HVAC by the main tenant, the subtenant can have no cause of action against it on any theory based on its failure to do so (see, Witty v. Matthews, 52 N.Y.2d 512, 514; Bomrad v. Van Curler Trucking Corp., 109 A.D.2d 1067). We would also note that the record shows that the subtenant was not physically expelled or excluded from the premises, and that it did not actually abandon the premises, and thus, even if the main tenant were required to repair the HVAC, the subtenant would have no cause of action against it for either an actual partial eviction or a constructive eviction (see, Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82-83).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.