81 FRANKLIN CO. v. GINACCINI

Defendant was a tenant at plaintiff landlord's premises at 81 Franklin Street in Manhattan. Tenant utilized landlord's premises as a sculpture casting studio and an art studio displaying sculpture. In January of 1987, the landlord began construction of a new elevator, the shaft of which ran through tenant's gallery. Such construction adversely affected tenant's use of the premises as a gallery due to noise, scattered dust and debris, and the moving of track lighting.

Partial actual eviction is a defense to a nonpayment action. Where there is a partial eviction, the tenant's obligation to pay rent is entirely suspended (Bijan Designer for Men v. St. Regis Sheraton Corp., 142 Misc.2d 175, affd 150 A.D.2d 244). A partial eviction, however, cannot be asserted as an affirmative claim to obtain a refund for rent already paid (487 Elmwood v. Hassett, 107 A.D.2d 285). Yet, a tenant is not without recourse. The tenant may recover in damages the proportionate part of the rent of that portion of the premises from which he was evicted (487 Elmwood v Hassett, supra, at 289). The Civil Court's determination that the tenant was deprived of half of the gallery space, or 25% of the total space, during construction and 1% of the total space thereafter for the space that the elevator shaft occupied established a reasonable and sufficient abatement. The award, moreover, does not prejudice the tenant's right to pursue the claim for loss of profits which was severed prior to trial.

Concur — Murphy, P.J., Milonas, Rosenberger, Asch and Rubin, JJ.