Opinion
May 6, 1993
Appeal from the Civil Court, Bronx County (Chin-Brandt, J.).
We find that, as noted in Justice McCooe's dissent at the Appellate Term, since the lease between the parties specifically authorizes the landlord to enter the premises to make repairs and specifically precludes a rent abatement based upon such entry, and since there was no showing that the entry in this case was for reasons other than to make repairs, Civil Court's finding that the entry did not constitute a partial eviction should have been sustained (Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82; Bijan Designer for Men v St. Regis Sheraton Corp., 142 Misc.2d 175, affd 150 A.D.2d 244; Ernst v Straus, 114 App. Div. 19). The record reveals no basis to disturb the finding of Civil Court that the time during which the repairs were effected was not unreasonable. In any case, the repairs having been authorized by tenant, any subsequent unreasonableness as to the time in which they were effected, assuming such had been proven, could not negate the authorization contained in the lease and retroactively transform the entry into a partial eviction.
We note, however that the determination that there has been no partial eviction is not dispositive of the action, pending in Supreme Court, seeking compensatory damages for the alleged breach of the lease.
Concur — Carro, J.P., Ellerin, Wallach, Kassal and Rubin, JJ.