Opinion
Argued September 13, 1999
November 8, 1999
Cassin Cassin Joseph, LLP (Joseph M. Buderwitz, White Plains, N Y [Denise M. Cossu] and Kenny Stearns [Michael C. Mull counsel), for appellant.
Mann Mann, Port Chester, N.Y. (Carolyn H. Mann and Monroe Y. Mann of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, HOWARD MILLER, JJ.
DECISION ORDER
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.
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 N.Y.2d 77 ; Johnson v. Cabrera, 246 A.D.2d 578 ; Hayden 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 A.D.2d 694 ;Kornhuber v. State of New York, 196 A.D.2d 629 ).
BRACKEN, J.P., S. MILLER, KRAUSMAN, and H. MILLER, JJ., concur.