4 argues that New York's equation of the doctrines of constructive eviction and breach of quiet enjoyment, while longstanding, is a mistake, founded on sloppy language in some old decisions.
The conceptual basis for permitting landlords to thus pre-condition the quiet possession covenant is that such a precondition is simply analogous to a parallel principle and potential trap for the unwary tenant - in the doctrine of constructive eviction, the principle of "election of remedies.
305 East 63rd Street Associates, where a commercial tenant (a) filed an answer in an L&T proceeding, defending its refusal to pay rent based on constructive eviction, and (b) then, the next day, filed a Supreme Court action for damages for constructive eviction.
In brief, the requirements for a constructive eviction defense are as follows:
Recently, the strictness of the constructive eviction doctrine has been eased in one respect: the Court has recognized a tenant defense of partial constructive eviction, where a discrete portion of the premises is rendered untenantable, and is vacated by tenant.