"Partial Actual Evictions: Whose Risk and Whose Burden of Proof?"

Justice Cardozo in 1917 stated that the court in Fifth Ave. Bldg. v. Kernochan, 221 N.Y. 370, 377 (1917), "place[d] the incidence of loss where justice requires it to fall."

Recently, in Eastside Exhibition Corp. v. 210 E. 86th St. Corp., the New York Court of Appeals issued a decision that arguably changed this well-settled rule of law with respect to partial actual evictions.  The general rule of law in New York for partial actual evictions had always been a bright-line test: If any portion of the demised premises were taken, the tenant was not obligated to pay rent. 

This Stroock Special Bulletin discusses the Court of Appeals' decision in Eastside, which has now created an exception to that rule, under which courts will have to determine the substantiality of an improper taking of leasehold space by the landlord.