There is still a further answer to this defense. A <mask>, as claimed here, requires an abandonment of the premises without unreasonable delay. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247; Two Rector St. Corp. v. Rein, 226 App. Div. 73; Vessell v. Reisfield, 152 Misc. 464, 466; Spoken Realty Corp. v. Raddock, 150 N. Y. S. 2d 835; Bliss v. Clark, 104 Misc. 543, 545.) The landlords made it abundantly clear that they would consent to a rescission of the lease, and the tenants’ offer to surrender, and the acceptance by the landlords placed the tenants under the obligation to relinquish possession of the premises. It is well established that the tenants were required to act promptly or else they forfeited the right of rescission. Continuance in *1080possession for a five and one-half-month period cannot he held to he a prompt act of acceptance. It is arguable that in the event of a claimed breach, the tenants could have waived their right to vacate, but assuming that a forfeiture did occur, the action of the tenants in holding possession for the period mentioned, and the continued payment of rent can be considered as a reinstatement of the lease with full force and effect as if no forfeiture had ever taken place. The tenants must exercise their option to abandon within a reasonable time after discovering the untenantable condition of the premises. Moreover, it is difficult for the court to believe that in the month of July, 1962, a lack of adequate heat would be seriously proposed as the basis of a constructive eviction and consequent abrogation of the lease.


In 1944 the Appellate Term, First Department, in the case of Peshkin v. Powell (182 Misc. 14) set forth the manner in which section 755 should be implemented. The court held (p. 16) that: “ The meaning of the words ‘ constructively evict ’ the tenant from a portion of the premises is not clear. The common-law rule is that there may be no <mask> of a tenant from premises unless he abandons possession; and in the case of an actual eviction from a portion of the premises, payment of the entire rent is suspended. The legislative intent would seem to be that resort may be had to the statute only in a case where the tenant is deprived of the beneficial enjoyment of a portion of the premises. As the mere existence of violations not involving unlawful occupancy is no defense to an action for rent, resort to the statute by the tenant is an admission that the. rent is due. The rent should be deposited in accordance with the Act, leaving for trial the issue whether the tenant’s proofs warrant a stay. If they suffice, a stay is ordered and payment is withheld from the landlord until compliance with the Department notice or order; if insufficient, the stay is denied and the landlord is entitled to a final order and judgment to be satisfied by the deposit and the payment of costs.”


The court is cognizant of the decision of the Appellate Term, First District, in 11 Welwyn Road Realty v. Goldfluss (191 Misc. 667) but believes that case does not prohibit application of the doctrine of forum non conveniens. In that case the court solely discussed the problem of the relationship of section 17 of the Municipal Court Code (venue) to section 6 of the Municipal Court Code (jurisdiction). The court did not discuss the concept of forum non conveniens, no defense of <mask> having been there interposed. In addition, in that case, the property involved was located in Great Neck, Nassau County, which county immediately adjoins New York City. No undue hardship, therefore, was imposed upon the parties to that action as would be imposed upon the parties in the case at bar where the property is located in the city of Binghamton, which is 200 miles from New York City.


*512Nevertheless, the equitable precept has been consistently enforced that the tenant must leave the premises to avoid the payment of rent, if <mask> is claimed (City of New York v. Pike Realty Corp., 247 N. Y. 245; Matter of Westchester County Syndicate Corp. v. Menke, 250 App. Div. 782) and has been recently reaffirmed (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117). The defendant herein, therefore, could not remain in possession and not pay rent during the period of possession. On the plaintiff’s complaint, therefore, judgment is awarded against the defendant in the sum of $1,200.


It is clear that the defense of a breach of the warranty of habitability is not available to respondent. The warranty of habitability contained in Real Property Law § 235-b is applicable only to residential tenants. But the landlord cannot recover the full amount of rent in a commercial setting if the tenant has been actually or constructively evicted from either the whole or a part of the leasehold (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]; Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370 [1917]). An eviction has *45been defined by the Barash court as "a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises”. (Barash v Pennsylvania Term. Real Estate Corp., supra, at 82.) An actual eviction takes place when acts of the landlord cause a physical expulsion or exclusion from the premises. A <mask> occurs when there is an abandonment by the tenant because the continued beneficial use of the premises is impossible. In other words, in an actual eviction the tenant is physically unable to occupy the space, but a constructive eviction happens because the tenant has been forced to vacate.


*335Brady, J. — I still acibere to tbe opinion, expressed by me on tbe decision of tbe demurrer in tbis action, tbat tbe answer sets up facts wbicb are admitted to be true, and wbicb constitute a defence to tbis action. I also adhere to tbe opinion tbat tbis case is a mucb stronger one for tbe application of tbe doctrine of '<mask> than Cohen v. Dupont (1 Sand. 260), stated in tbe opinion referred to. My understanding of Judge Daly’s opinion is, tbat tbe defendant not having abandoned tbe premises during the quarter, be was not evicted constructively or otherwise, and is not discharged. In answer to tbat view, I state tbat, by tbe lease, tbe defendant was entitled to a renewal of bis term, wbicb be abandoned because of tbe acts set up in tbe answer ; and tbat if there was no abandonment during tbe quarf%-for wbicb tbe rent is alleged to have accrued, there was an abandonment of tbe premises for tbe further term to wbicb tbe defendant was entitled. I am not aware tbat any case has yet arisen in tbe courts, deciding tbe question directly as to when and under what circumstances tbe defendant must abandon tbe premises, to make an eviction perfect; although I think tbat in tbis case, as I have already stated, there was in fact an abandonment of tbe premises. I understand a tenant to abandon premises if he leave them before his term expires, or bis right to possession ceases, without reference to tbe precise time when tbat abandonment takes place. I also understand the abandonment to be perfect when a tenant, having a' right to a further term, leaves tbe premises upon tbe expiration of tbe original term, and that the rent accruing cotemporaneously with such abandonment does not change tbe relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. Tbe law does not regard tbe fractions of a day. It seems to be con ceded, tbat if the premises are abandoned before tbe rent becomes due, tbe eviction would b§ accomplished without reference to the part or portion wbicb bad expired of tbe period for wbicb tbe rent is claimed. In tbe case of Jackson v. Eddy and others, .cited by Judge Daly, tbe landlord tried to prevent further injury to bis tenant from tbe - causes complained of, and did so *336temporarily. In this case, tbe landlord neither did nor attempted to do anything, although often requested; but wantonly, maliciously and negligently permitted the continuance down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not in point on the question here censidered, in my judgment, although it shows an eviction to have resulted from acts of the landlord that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. ’Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On •^.contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, in consequence thereof, was compelled to abandon the premises and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up, down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent in cases like the present is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises whilst they continue and before the rent accrues, in which case they become a bar. It follows, from this, that if the disturbance cease before the rent becomes due and while the tenant is still in occupation, the rent may be recovered ; and, with equal propriety, that if the disturbance continue during the whole period of a part of the term, during which rent accrues and down to the time the rent becomes due by the agreement, the rent cannot be recovered, inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof.


Indeed, in the Jacobs v. Morand case, referred to in the above quotation, the Appellate Term, First Department, held that the presence of the water bugs and bedbugs did not constitute eviction, citing some earlier cases. The court refers to Vanderbilt v. Persse (3 E. D. Smith, 428), in which a bad smell in the pantry, the kitchen being too hot with the stove in it, bad smells from the front window, a stagnant pond of water near the place, bad smell from fish, and vermin in the bedrooms, were held merely to be “ matters that might have given some trouble to eradicate, but none of them can be held sufficient to relieve the tenant from his liability, or to come within the rule that defines an eviction.” And, too, in Pomeroy v. Tyler (9 N. Y. St. Repr. 514) Chief Justice McAdam wrote “ that because the rooms occupied by him [the defendant] were overrun with vermin, to wit: bedbugs, cockroaches, croton water bugs, and red ants, making it inconvenient to inhabit the premises and render them untenantable, * * * did not constitute a <mask> of the tenant.” Judge McAdam said that the inconvenience was “ one to which all more or less are subjected at times; but which, with ordinary skill and attention, may be abated by the tenant.”


The second defense and the two counterclaims are untenable. Concededly the rent reserved has not been paid. The tenant claims that the cellar (basement area) is not usable as an “ art gallery ’ ’ and is also nonusable because of overheating, with consequent monetary damages, and maintains that constitutes a partial eviction and breach of the covenant of quiet enjoyment. From time immemorial, the legal keynote has been that tenant must show an ouster or if the eviction is constructive, as it is here, an abandonment of the premises. <mask> is to be distinguished from a partial actual eviction, where there is a physical expulsion by the landlord from a portion of the premises. (Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624; 1 Rasch, Landlord and Tenant, §§ 849, 871.)


. The statute, as it then existed, permitted the court to stay evictions for nonpayment of rent if conditions had been officially noted by a New York City agency which in the court’s opinion constituted a “ <mask> ”; provided, however, that all past due rents and rents from time to time to become due thereafter were deposited with the Clerk of the court. Since then the statute has been amended to permit its application without the intervention of an official agency and to extend its effect throughout the State (L. 1969, ch. 820).


Number Violation Found Window cannot be readily opened....................... 9 Repair tile floor in bathroom........................... 4 Door not properly fitted............................... 4 Repair waste stopper in bathroom...................... 2 Concealed leak................ 2 Inadequate supply of cold or hot water.................. 2 Replace door saddle................................... 2 Replace glass in window............................... 2 Plaster walls or ceiling in apartment.................... 3 Repair flushing apparatus............................. 1 Plaster wall in public hall.............................. 1 Repair door frame.................................... 1 Repair hole in wood floor............................... 1 *956From the testimony and from the court’s own observations, obtained on an inspection tour of the premises which is discussed below, the court is convinced that the afore-mentioned conditions, found by the inspector are not of such a magnitude, individually or collectively, as to constitute a danger to the life, health or safety of the tenants. Neither are the individual conditions sufficient to constitute a <mask> so as to bring the petitioners within the purview of relief afforded by section 755 of the Beal Property Actions and Proceedings Law.


To argue as the counsel for the defendant does that ‘ ‘ continuous possession under the agreement will be necessarily implied unless it were specifically negatived in the petition for some reason ” is to extend the rule beyond its proper scope. In any event, an actual partial eviction as distinguished from a <mask> is not inconsistent with possession, nor would possession by the tenant be a defense thereto (Seigel v. Neary, 38 Misc. 297, supra, and see Harfried Realty Co. v. Spuyten Amusement Corp., 150 Misc. 904, 905). Nor would an actual eviction which occurred on only one day in October followed by the resumption of possession by the tenant be a defense to a proceeding for the nonpayment of rent in November (cf. Kermacoe Realty Co. v. McKenna, 132 Misc. 293; Peerless Candy Co. v. Halbreich, 125 Misc. 889). Thus, there are triable issues which cannot be determined upon affidavits alone. Motion denied.


The question before me then is whether the tenants’ proofs warrant a stay until all the orders have been complied with and *963the violations removed. In my opinion the conditions upon which the violations were grounded were ‘1 <mask> ” violations. The conditions I found made the premises uninhabitable in accordance with civilized standards of decency and should be rectified immediately. They were obviously the result of consistent neglect and indifference on the part of the landlord over a long period of time.


At common law, a <mask> resulted when, through some act or failure to act on the part of the landlord, a tenant was deprived of the beneficial use of the premises and was forced to vacate the same. The defense of constructive eviction could not be raised to an action for rental nonpayment unless the tenant actually surrendered the premises to the landlord. To ameliorate the harshness of this doctrine, section 755 of the *496Real Property Actions and Proceedings Law was enacted. It provides that in a summary proceeding for nonpayment of rent the tenant of a building or part thereof used for dwelling purposes may avail himself of the defense of constructive eviction, although he retains possession of the demised premises provided conditions dangerous to life, safety or health exist therein.


To constitute a <mask>, the deprivation must be substantial and effectual. Not every deprivation of the beneficial enjoyment of the property in whole or in part amounts to a constructive eviction. (Lounsbery v. Snyder, 31 N. Y. 514; Bromberger v. Empire Flashlight Co., 138 Misc. 754.) In Seaboard Realty Co. v. Fuller (33 Misc. 109, 110) the court said: “ To constitute a constructive eviction, there must be an inten*466tional and injurious interference by the landlord, which deprives a tenant of the beneficial enjoyment of the demised premises, or materially impairs such beneficial enjoyment. An eviction depends upon the materiality of the deprivation. If trifling, and producing no substantial discomfort or serious inconvenience, it will be disregarded, and will not afford cause for termination of the relation of landlord and tenant.”


The rule in this State has been that in order to establish a cause of action for breach of a covenant of quiet enjoyment, the tenant must show either that he has been ousted from the premises, or that there has been a <mask> through some happening which effectively deprived the tenant of the *577use of the premises, as a result of which he is compelled to abandon it. The corporation contends that in this case, since there has been neither an eviction nor an abandonment of the apartment, the plaintiff cannot maintain a claim for breach of the covenant of quiet enjoyment. It cites Herstein Co. v. Columbia Pictures Corp. (4 N Y 2d 117) in support of the proposition that a plaintiff cannot claim constructive eviction unless he has actually abandoned the premises. (See, also, Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77; Rasch, Landlord and Tenant [2d ed.], § 925.)


Moreover, article 26 of the April 17, 1980 lease provides: "No act or omission of Lessor or its agents shall constitute an actual or <mask>, unless Lessor shall have first received written notice of Lessee’s claim and shall have had a reasonable opportunity to meet such claim”. Under the term of this paragraph no eviction of the tenant could take place in the absence of adequate notice to the landlord affording the landlord a reasonable opportunity to cure the circumstances *26giving rise to the alleged eviction. While tenant claims that the eviction occurred in October of 1983 when the locks were changed, it is conceded that no written notice was given by tenant to landlord until November 30, 1984. That notice, although referring to the change of the locks, did not contemplate a cure of the acts claimed to constitute an eviction, but rather assumed the alleged eviction to be incurable. In light of the posture adopted by the tenant, landlord’s delay in forwarding the key cannot be deemed unreasonable.


The fact that the premises were untenantable or unfit for occupation was, at common law, no defense to an action for the rent, where the lessee covenanted to pay rent, or was in possession as occupying tenant of the premises. Under the statute of 1860, (c. 345,) modifying this rule of law, it is a prerequisite that the tenant has abandoned the premises, and no longer holds them as occupant in any manner; and said statute applies only in case the building became untenantable from a cause not existing till after such tenant commenced his “term” of tenancy embracing the rent sued for. Bloomer v. Merrill, 1 Daly, 485. The guaranty in the preceding sealed lease, if any there was, related to the then state of the premises at the making of such preceding lease; and was, furthermore, not the plaintiff’s guaranty, but that of John C. Hays individually. The alleged paroi agreement, subsequent to the making of said lease for the first term, to have said premises again only conditionally upon an alteration of the drainage arrangements, was with the lessor’s agent; and no authority in such agent to make any such agreement was shown on the trial so as to bind the present plaintiff. There was, besides, no relation of agent and principal between “Guerineau and Drake, and Cornelia G. Hays,” plaintiff herein. The agents were to communicate with Mr. Hays, who was not the “owner, ” to make any disposition of the premises for the succeeding year. Notwithstanding that no changes were made in the sewer or drainage connections, the defendant stayed in the house as an occupying tenant, after-May 1,1887; and he cannot destroy now the characterization he thereby placed on the state and condition of the premises as regards their tenantableness, nor can he controvert the legal effect of such holding over, that the “owner” may elect to treat him as a “tenant” for a year, liable for the rent accordingly,instead of as a “trespasser.” Not having been expelled from the premises, nor having abandoned the same, the tenant cannot insist on a <mask>, or claim damages against this plaintiff, neither with respect to the holding under the sealed lease, nor as regards the new term for another year under the “owner, ” created by operation of law. Edwards v Candy, 14 Hun, 596, 598. The supposed actual surrender was not accepted, and is insufficient. Long v. Stafford, 103 N. Y. 283, 8 N. E. Rep. 522. The landlord is no insurer of the “ tenantableness” of the house demised. A tenant, taking premises either originally or on a renewal, must look and judge for himself. The rule is, caveat ern/ptor. Chappell v. Gregory, 34 Beav. 253; Erskine v. Ad*387eane, 6 Moak, Eng. R. 594, 598; Cleves v. Willoughby, 7 Hill, 86; Hart v. Windsor, 12 Mees. & W. 68; Keates v. Cadogan, 10 C. B. 591; Robertson v. Tug Co., 46 Law T. (N. S.) 146. The landlord is not impliedly bound to keep the demised dwelling-house in repair as let unto defendant, or to improve the same, but*a direct covenant so to do it necessary to hold such landlord (either Mr. Hays, or, since the term of former lease, the plaintiff) to damages for any injurious consequences. Witty v. Matthews, 52 N. Y. 514; Murray v. Mace, 8 Ir. C. L. 400, 401; Post v. Vetter, 2 E. D. Smith, 248; Mullen v. Rainear, 45 N. J. Law, 520, 523; Reg. v. Bucknall, 2 Ld. Raym. 804; Taylor v. Whitehead, 2 Doug. 749; Colebeck, v. Girdlers Co., 1 Q. B. Div. 234. Says Lord Mansfield, in Taylor v. Whitehead: “The common law is, he who has the use of a thing ought to repair it.” Mere omission to abate the objectionable state of things, though a nuisance, where tenant has the possession, is insufficient to render the landlord responsible to the tenant. Wenzlick, v. McCotter, 87 N. Y. 127; Howard v. Doo'ittle, 3 Duer, 464, 474, 476. The plaintiff was not in any way liable to defendant for a bad state of drainage-pipes of the house in question, Coddington v. Dunham, 3 Jones & S. 412; Loupe v. Wood, 51 Cal. 586; Ivay v. Hedges, 9 Q. B. Div. 80; Gott v. Gandy, 2 El. & Bl. 847. “Fraud apart, there is no law against letting a tumble-down house; and the law of easements (given for value or otherwise) is, the grantee or holder of the easement had to repair the subject of the easement, with a right of entry so to do.” Robbins v. Jones, 15 C. B. (N. S.) 240, 244. The tenant’s remedy is therefore only on his contracts. Id. Lessor is never liable, (without an agreement,) though he have full notice of the need of repairs. Brewster v. De Fremery, 33 Cal. 341, 343, 347. A tenant cannot complain that the building was not constructed differently. Woods v. Cotton Co., 134 Mass. 357. In conformity with the foregoing authorities, it was therefore properly held in Chadwick, v. Woodward, 13 Abb. N. C.441, as follows: “The roof of the house may leak, flues may smoke, etc., and no claim for tenant’s consequent ill health, or for sickness in his family, is ever thought of; but if a pipe becomes deranged or is defective, a different rule is claimed. Tenants hire with a knowledge of the sewer connections existing, and may examine them; and these are no more concealed than may be said of the inside brickwork and nearly every portion of a substantial house.” “The party hiring can have as much knowledge as the lessor; the pipe fittings are no more open to the landlord then to the house-hunter.” “Defects in plumbing are like defects in flues,—for which latter a liability never exists on landlord’s part, (in the absence of binding covenant or agreement,) even if he be aware thereof.” And on the appeal to the court of common pleas, in same case, (Chadwick v. Woodward, 12 Daly, 399,) it was further held that the damages claimed, for that tenant and his family were made ill by bad sewerage, besides injury to him thereby in alleged loss of business, were too remote on behalf of the occupying tenant for any recovery, even where the landlord has covenanted or agreed to repair. Also see Mayne, Dam. 26; Middlekauff v. Smith, 1 Md. 329, 343; Dorwin v. Potter, 5 Denio, 306, 308; Academy v. Hackett, 2 Hilt. 218; Arnold v. Clark, 13 Jones & S. 256, 257. The landlord being, as above remarked, no insurer of the tenantableness of the dwelling-house in question, wholly demised to and in the continuous possession of defendant, and the landlord being by the demise or afterwards under no obligation to repair, and by implication of law a new term for another year from May 1, 1887, having then arisen in favor of this plaintiff, (as then “owner” of the premises,) who never contracted or guarantied concerning the premises, the defendant was bound to actually leave and abandon the premises promptly, (i. e., within a reasonable time after the occasion,) for “untenantableness,” in order to make out a defense against further rent. This was, however, a case of a bad construction of the house as taken, and not one where the premises became untenantable after the letting by a subsequent cause. Under Francke v. Youmans, 17 *388Wkly. Dig. 252; Cowie v. Goodwin, 9 Car. & P. 378; Thomas v. Nelson, 69 N. Y. 121,—the act of 1860 did, therefore, not apply herein. Hence the tenant had the premises at his hazard, and therefore must pay all the rent. There was no undertaking on the landlord’s part to repair.


The circumstances relied upon in this case have generally been governed by the rule of <mask>. (Cf. Sully v. Schmitt, 147 N. Y. 248 [failure of the landlord to repair open sewer under leased] premises; Tallman v. Murphy, 120 N. Y. 345 [defects in heating, water and sanitary equipment] ; and see Edgerton v. Page, 20 N. Y. 281 [defective waste pipes due to negligence of landlord]; November v. Wilson, 49 Misc. 533 [App. Term, dampness, leakage of water, negligent management of boilers and other machinery]; Krausi v. Fife, 120 App. Div. 490 [defective plumbing causing upflow of sewer gas]; O’Gorman v. Harby, 18 Mise. 228 [App. Term, defects in boiler, insufficient heat due to stoppage in return of steam by reason of “ faulty construction, accident or mismanagement” by landlord’s agents] ; Jackson v. Paterno, 58 Misc. 201 affd. 128 App. Div. 474 [failure to supply adequate heat]; Self Service Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774 [defective piping, water and disposal facilities causing water flow due to negligence of landlord].)


On the question of <mask>, it will not be necessary to pass upon this point at this time, although defendant has submitted several citations including: Schulte Realty Co. v. Pulvino (179 N. Y. S. 371); Ben Har Holding Corp. v. Fox (147 Misc. 300); Bromberger v. Empire Flashlight Co. (138 Misc. 754); Sully v. Schmitt (147 N. Y. 248); Real Property Law (§ 227).


A similar situation also existed in Hancock Construction Co. v. Bassinger (198 N. Y. Supp. 614, not officially reported), where the Appellate Term, First Department, held that bedbugs which came from behind the moulding on the wall, out of the cracks, and from behind the wooden panels, so numerous that they got into defendant’s clothes and habitually accompanied him to his business office downtown where “ an inquisitive bedbug would come forth from some secret place, much to defendant’s embarrassment; ” and that “ after each visit of the exterminators, there would be relief for a day of two, but then the reenforced army would come forth again with renewed vigor, and the defendant and his family would spend sleepless nights as they were unable to get a resting place in the apartment where solitude and sleep could be enjoyed,” was such an aggravated condition, “ evidently the result of negligence ” on the part of the landlord in not properly caring for its property, and subjected the defendant to such a “ disgusting experience of being overwhelmed by an army of vermin,” as to make out a <mask>. The decision in favor of the defendant in that case rested upon the proposition that the defendant could not pull *303down the walls of the apartment to destroy the vermin. However, the court recognized that the defense of constructive eviction will not avail where the premises may be rid of the nuisance by some attention on the part of the tenant. The court said: “ It may well be that the presence of bugs and ants in an apartment, can, within certain limits, be controlled and remedied by the tenant, and which would not warrant the claim that the condition amounted to a constructive eviction, as was held in the case of Jacobs v. Morand (59 Misc. Rep. 200).” (Hancock Construction Co. v. Bassinger, supra.)


The amended answer does not set up any counterclaim, but instead four separate defenses — a first separate defense incorporating the contention of a failure of consideration based upon the *326fact that the landlord failed to make certain decorations in and to the apartment, incorporating a further allegation of an offer to surrender; a second separate defense based upon the same allegations, alleging the depreciation in the value of the apartment, in which defense the defendant specifically states that a counterclaim under the head of this defense in this court would unjustly deprive this defendant of a substantial portion of his rights and remedies, and presenting a conditional offer on the part of the defendant to plead said facts as a counterclaim provided the action is removed to the Supreme Court; the third defense, consisting of a <mask>; and a fourth defense purporting to be a claim of fraudulent representation constructed out of an allegation that the landlord never intended to make the alterations and repairs and induced the defendant to enter into the agreement, falsely representing that such decorations would be made.


The statute by its 1969 amendment makes the question of <mask> and removal from the premises academic, for it gives as a further ground that the premises “is or is likely to become, dangerous to life, health, or safety ”. In addition, the law is further expanded so that the limitation of a filed or recorded violation is no longer a necessary prerequisite. Subdivision b of section 755 of the Real Property Actions and Proceedings Law states, “proof of the existence of a condition” will be sufficient.


“As a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for quiet enjoyment. * * * In other words, there must be an ouster, or a justified abandonment ” (Rasch, Landlord & Tenant [2d ed.], § 893). The record herein is devoid of a showing of actual or <mask>. The counterclaim also cannot be sustained on the theory of negligence. Even assuming negligence on petitioner’s part, there is no evidence indicating that it was the proximate cause of the loss. V The rule is well-settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. If the matter is left in doubt, and it is just as probable that the accident was the result of one cause as the other, there is no *1091liability. In these circumstances a verdict holding defendant answerable to plaintiff would be based upon mere speculation ’ ’ (1 Warren’s Negligence, ch. 5, §§ 5.01, 5.10, pp. 130-131).


Brady, J. I still adhere to the opinion expressed by me on the decision of the demurrer in this action, that the action sets up facts which are admitted to be true, and which constitute a defence to this action. I also adhere to the opinion that the case is a much stronger one for the application of the doctrine of <mask> than Cohan v. Dupont (1 Sandf., 260), stated in the opinion referred to. My understanding of Judge Daly’s opinion is, that the defendant not having abandoned the premises during the quarter, he was not evicted, constructively or otherwise, and is not discharged. In answer to that view, I state that, by the lease, the defendant was entitled to a renewal of his term which he abandoned, because of the acts set up in the answer. And that if there was no abandonment during the quarter for which the rent is alleged to have accrued, there was no abandonment of the premises for the further term to which the defendant was entitled. I am not aware that any case has yet arisen in the courts deciding the question directly, as to when and under what circumstances the defendant must abandon the premises to make an eviction perfect, although I think that in this case as I have already stated there was, in fact, an abandonment of the premises. I understand a tenant to abandon premises if he leave them before his term expires, or his right to possession ceases, without reference to the precise time when that abandonment takes place. I also understand the *13abandonment to be perfect, when the tenant, having a right to a further term, leaves the premises upon the expiration of the original term; and that the rent accruing cotemporaneous with such abandonment, does not change the relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. The law does not regard the fractions of a day. It seems to be conceded, that if the premises are abandoned before the rent becomes due, the eviction would not be accomplished without reference to the part or portion which had expired of the period for which the rent is claimed. In the case of Jackson v. Eddy, and others, cited by Judge Daly, the landlord tried to prevent further injury to his tenant from the causes complained of, and did so temporarily. In this case, the landlord neither did, nor attempted to do, any thing, although often requested, but wantonly, maliciously, and negligently permitted the continuance, down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not, in my judgment, in point on the question here considered, although it shows an eviction to have resulted from acts of the landlord, that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On the contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, was compelled, in consequence thereof, to abandon the premises, and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent, in cases like the present, is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises while they continue, and before the rent accrued, in which case they become a bar. It follows from this, that if the disturbance cease before the rent becomes due, and while the tenant is still in occupation, the rent may be recovered. It also follows, with equal propriety, that if the disturbance con*14tinue during the whole period of a part of the term during which rent accrues, and down to the time when the rent becomes due by the agreement, the rent cannot be recovered; inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof.


We regard cases as containing the evidence-of the law, as evincing the rule of decision; and they are consulted to ascertain the principle on which that rule is founded. The review of the cases now made, shows that the principle on *733which a tenant is required to pay rent, is the beneficial enjoyment *of the premises, unmolested in any way by the landlord. It is a universal principle in all cases of contract, that a party who deprives another of the consideration on which his obligation was founded, can never recover damages for its non-fulfilment. The total failure of the consideration: especially when produced by the act of the plain- . ,.f , „ ' , . , . tiff, is a valid defence to an action, except m certain cases, where a seal is technically held to conclude the party. This is the great and fundamental principle which led the courts to deny the lessor’s right to recover rent where he had deprived 4he tenant of the consideration of his covenant, by turning him out of the possession of the demised premises. It must be wholly immaterial by what acts that failure of consideration has been produced; the only inquiry being, has it failed by the conduct of the lessor ? This is a question of fact, and to establish it, the proof offered in this case was certainly competent. I do not feel called upon to say that those facts would have been alone sufficient. Of that the jury were to judge, at least, in the first instance; and the question whether they amounted to a full and complete legal defence, might have been presented in another shape. The only question for our decision is, whether that testimony ought to have been received at all ? Believing that it tended to establish a <mask> and expulsion against the consent of the tenant: that it tended to prove a disturbance of his quiet possession, and a failure of the consideration on which only the tenant was obliged to pay rent, I am of opinion that it ought to have been re-„ ceived; and that, therefore, the judgment of the supreme court should be reversed, with directions to issue a venire de novo.


However, I do not rest my decision on that ground in view of the decision of the New York Court of Appeals in Barash v. Pennsylvania Term. Real Estate Corp. (26 N Y 2d 77). Although the facts of the Barash case do not preclude such a finding, the wording of the opinion plainly suggests a disposition to define actual eviction rather narrowly. I therefore turn to consider the status of partial <mask> under New York law.


Although the tenant was not physically barred from using the area in question, its access to its loading dock and the *316availability of more than one half of its parking spaces was severely restricted by the other tenant’s loading dock and truck deliveries. The landlord’s failure to protect the tenant’s access for loading and unloading of trucks making deliveries and for its parking spaces was a breach of its obligation to the tenant under the lease and a partial <mask> (KRU, Inc. v 1000 Massapequa, 238 AD2d 314).


There are circumstances which may justify a tenant to abandon the premises and from the evidence in this case it would seem that the justice very properly found that there was a <mask>. To render eviction from the premises a valid defense it must have taken place, however, before the rent became due. (Giles v. Comstock, 4 N. Y. 270.) Under the terms of this lease, the rent became due on the first day of January, ten days before the defendant abandoned the premises. It is not disputed that the defendant abandoned the premises on the tenth day of January and that no rent was paid for the month of January or any part thereof. It follows, therefore, that the judgment was- contrary to and against the weight of evidence.


*1023nation with respect to interest and the trial court retained jurisdiction to fix interest at the statutory rate (Kiker v Nassau County, 85 NY2d 879). We also note that our order of modification provided for a new trial on tenant’s <mask> claim, and necessarily contemplated the entry of an amended judgment (see, Solow v Wellner, 86 NY2d 582, 589, supra).


The answers of the tenants are similar. In addition to a general denial, they interpose two separate defenses. The first defense alleges that the rental value of the premises is in the sum of $5 less than claimed by the landlord because of a diminution of services and equipment furnished to the tenant by the landlord as compared with the services and equipment furnished *768on March 7, 1943; and that the said diminution is in contravention to the Housing and Rent Act of 1947, as amended (U. S. Code, tit. 50, Appendix, § 1881 et seq.), and the regulations pertaining thereto. The second separate defense alleges violations constituting a <mask>.


The main issue concerns defendants’ affirmative defense of <mask>. The defendants ’ entered into a lease with plaintiff, dated May 12,1959 for a period beginning July 1,1959 and expiring September 30, 1962. The lease covered a luxury apartment and the rent payable is $172.50 per month. Defendants’ moved out of the apartment during the latter part of September, 1960.


What constitutes a. <mask> is generally a question of fact. ‘ ‘ It must appear that the landlord has persistently neglected his duty, and that the premises thereby become unfit for occupancy. A series of petty inconveniences, such as failing to light halls * * * are not sufficiently serious to warrant a claim of constructive eviction ”, (1 Rasch, § 886.)


It is axiomatic that a tenant must pay the rent as a condition precedent to asserting <mask> or a breach of the covenant of quiet enjoyment as a defense to a summary proceeding based on nonpayment of rent, or as a counterclaim, or as a separate action for damages. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Mosbacher v. Cleaners Enterprises, supra.) Tenant must show that it has performed the conditions precedent on its part to be performed, which it has not done here since the tenant has not made payment of the rent. (Silken v. Farrell, 281 App. Div. 718; Meyer v. Schulte, 160 App. Div. 236, affd. 213 N. Y. 675; Baitsel v. Rhinelander, 179 App. Div. 735.)


If, on the other hand, the right appurtenant did pass to the tenant in these proceedings, there was no actual eviction. There can be no actual eviction except from premises actually possessed. An infringement of an appurtenant right by the landlord, if of a substantial nature, may amount to a <mask>, which the tenant may avail himself of only on moving out of the premises.


*304In the case at bar the court is merely concerned with the proposition of whether a few crickets in the tenant’s premises, under the circumstances testified to, may be legally classified among the various types of creatures known to be noxious or mischievous, and commonly referred to as vermin or pests, the presence of which will, in law, constitute a <mask>.


Under different, yet also helpful facts, in Downtown Realty, Inc. v. 509 Tremont Bldg., Inc. , our sister court found that a landlord's failure (i.e. omission) to repair the heating and air conditioning sufficiently material to constitute <mask> in a commercial context where oral and written notifications began months before the tenants abandoned the premises. 748 S.W.2d at 310-11, 312.


The act of the landlord must cause an actual eviction and physical expulsion of the tenant from all or part of the leasehold or such material deprivation of the beneficial use and enjoyment of possession in all or a significant part of the leasehold as to justify the tenant’s abandonment thereof. In an actual partial eviction, the tenant may continue in possession of a part of the leasehold while a <mask> requires a surrender and abandonment of possession. (Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77, supra; Pasqua v. DeMarchi, 31 A D 2d 781; 300 West 56th St. Corp. v. Kelly, 153 N. Y. S. 2d 978; Malek v. Perdina, 58 Misc 2d 960; Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624; Matter of Siegel v. National Bead & Stone Co., 37 Misc 2d 297.) (But, cf., East Haven Assoc. v. Gurian, 64 Misc 2d 276 [Civ. Ct., N. Y. County], [new doctrine of partial constructive eviction].)


As to the alleged condition with respect to the toilet facilities, the court agrees that continued failure of the landlords to provide sanitary toilet facilities for the tenant’s employees may ground a claim for <mask>. The cases cited by the defendant (Mosbacher v. Cleaners Enterprises, 19 Misc 2d 624 [decided by this court]; Self Service Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774, and West 30th St. Parking Corp. v. Sobel, 21 Misc 2d 274) do not sustain the claim of actual partial eviction but they do support the defendant’s contention that the landlord’s failure to supply sanitary toilet facilities for the tenant’s employees may constitute constructive eviction, and with this contention the court agrees. However, it is well settled that the tenant cannot claim constructive eviction without abandonment of the premises. (Boreel v. Lawton, 90 N. Y. 293; Mosbacher v. Cleaners Enterprises, supra and eases there cited.)


This does not dispose of the counterclaim in the defendant’s answer. If a tenant is constructively evicted, there is a failure of consideration (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370, supra). It follows that payment of security for future installments of rent would be recoverable, if <mask>, coupled with actual abandonment of the premises, were established. Foul and offensive odors may be the foundation for constructive eviction (Barnard Realty Co. v. Bonwit, 155 App. Div. 182; cf. Tallman v. Murphy, 120 N. Y. 345; Tallman v. Earle, 3 Misc. 76; Sully v. Schmitt, 147 N. Y. 248; Lathers v. Coates, 18 Misc. 231). Here there was a written lease, stating in part that the landlord covenanted that the tenant would “ peaceably and quietly have, hold and enjoy the said demised premises ”, that the tenant was to use the premises exclusively for a private residence, that the landlord was to have the plumbing works, and fixtures, and other named appliances in good order when giving possession to the tenant, and that the landlord would deliver the premises in a broom clean condition. Although no covenant of habitability shall be implied from a landlord-tenant relationship (Franklin v. Brown, 118 N, Y. 110), such a covenant may be implied from the terms of a lease to the effect cited (Daly v. Wise, 132 N. Y. 306, 309-310; see Ann. 4 A. L. R. 1453,1455; cf. Mutual Life Ins. Co. v. Winslow, 183 Misc. 754). The instant lease stipulated a rental indicating premises of a character inconsistent with the condition which the tenant discovered. Moreover, the acts of the landlord and her employee in attempting to cure the condition are significant evidence of a recognition of an obligation under the lease (Zimmermann v. Roesseler & Hasslacher Chem. Co., 246 App. Div. 306, 315, affd. 272 N. Y. 566; Matter of Mencher [Geller & Sons], 276 App. Div. 556, 565).


The second factual assumption was that a tenant whose apartment had ceased to be habitable could readily move to a suitable apartment maintained in accordance with the law. The sustained and severe housing shortage dating from World War II and the accompanying deterioration of much of our housing supply, have surely rendered <mask> an illusory protection for the urban tenant — and especially for the poor tenant. The language in the Davar opinion suggesting that tenants could simply *20move and then defend against rent proceedings has a nostalgic flavor today.


The majority finds a <mask> although the trial court did not make any such factual finding. A constructive eviction requires a showing that the tenant abandoned the premises due to the wrongful acts of the landlord which deprived it of the use and enjoyment of the premises. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77.) There was no physical abandonment of the premises by the tenant, only an alleged delay in opening the restaurant. Renovations were continuing during the period in dispute which indicated an intent to remain rather than to abandon the premises. Furthermore, the abandonment must take place without unreasonable delay, a fact not present here. (GSL Enters. v Bella Carla Fashions, NYLJ, Aug. 28, 1996, at 22, col 2.)


New York City Housing Auth. v. Jackson (58 Misc 2d 847 [Civ. Ct., Bronx County, another case cited by the defendant]) involved a summary proceeding for nonpayment of rent brought by the Authority against 53 tenants who urged as a defense the alleged failure of the petitioner to supply adequate protection against criminal activity in their project. The court in that case found insufficient support for the technical defense of an alleged <mask>. It is on that ground alone, readily distinguishable from the tort here. However, I can and do take issue with any conclusion that the Jackson case is authority for a rule that the Housing Authority has no obligation in any circumstances to provide police protection. The court in Jackson (p. 850) found no proof that isolated acts, widely separated in time “ could reasonably have been anticipated so as to impose a duty upon the landlord to increase existing security measures.” The facts here beyond question point the other way.


In opposition to Knight's motion, Salima argued that she was lawfully in possession of the premises, and retained all legal rights of possession up to the time she was dispossessed following the completion of the unlawful detainer process. With regard to the conversion claim, Salima argued that Knight's defense that Salima had abandoned her property was legally deficient because her claim was based upon environmental contamination, and that the act of conversion was completed when her medical equipment and supplies were contaminated as a result of the raw sewage spill. She also argued that the abandonment defense was factually deficient because Knight failed to show that she complied with statutory notice requirements that apply when premises are vacated. With regard to the breach of the covenant of quiet enjoyment claim, Salima agreed with Knight's assertion that this kind of claim does not apply to commercial properties, but argued that the allegations of the claim adequately pleaded a claim for <mask>; she asked the court to ignore the label of the claim and treat it as a claim for *845constructive eviction. Addressing the nuisance claim, Salima argued that Knight's illegality argument was baseless, and that there were disputed factual issues raised by Rahim's testimony. Salima argued that the negligence/strict liability claim could not be resolved on summary judgment because there was evidence that Knight was given notice of plumbing problems in the past, and was given notice of the sewage issue immediately after it occurred. With regard to the contract interference claim, Salima argued there were factual disputes regarding Knight's knowledge of the sale and the fact of the sale; she noted there was a signed contract for the sale, and that her deposition testimony that she did not sell her practice was of "no moment" because she was not involved in the business end of the practice. Finally, Salima argued there were no grounds to grant summary adjudication of the section 17200 claim because it is based upon her other claims, all of which should survive summary adjudication.


Plaintiff-landlord’s remaining cases are clearly distinguishable. In Stein v Rice (23 Misc 348) a residential summer cottage lease contained no provision that premises were in good condition (sufficient water supply) and alleged constructive conviction occurred 17 days after final rent installment was due. In Fermaglich v Warshawiak (42 Misc 2d 1077) landlord of a residential apartment offered after IV2 months to accept surrender but tenants remained in possession for an additional 516, months. In Ernst v Wheatley (93 NYS 1116) tenant remained in possession 20 days after storm’s water flooding and damages, a single event, outside of landlord’s control, as distinct from landlord’s continuing wrongful act by omission herein. In Finkelstein v Levinson (supra, p 108) the court (Egeth, J.) in dicta recognized that noise could justify <mask> abandonment in these commercial premises, but there, in factual contrast to the instant case, tenant did not abandon any part or all of the leased premises (total abandonment herein) and landlord therein was faultless by first attempting to muffle sound and then tried to arrange agreement with overhead noisy tenant to operate printing presses at mutually convenient time (while landlord did little to soundproof though required under lease and nothing with neighboring noisy tenant herein).


The fallacy of that argument is quite evident and manifest. Applying ‘1 common sense and common justice ’ a tenant deprived of the beneficial use and enjoyment of a portion of the demised premises cannot be placed in a better bargaining advantage than a tenant who is deprived of the beneficial use and enjoyment of the entire demised premises. For, if a tenant must abandon the demised premises to claim the benefits of a total <mask>, then, certainly, a tenant deprived of the beneficial use and enjoyment of a portion of the premises must either vacate the said premises or pay rent if he elects to remain in possession.


The executrix contends that the landlord is not entitled to recover any sum at all from the estate because (1) there was a surrender and acceptance of the lease in fact; (2) there was a surrender and acceptance of the lease by operation of law; (3) there was a <mask> in January, 1960. While conceding that rent for the month of January was due in every event, the executrix states that the sum of $370 had been deposited with the landlord as security for the lease and that when this sum is applied to the rent, there is nothing owed by the estate.


*731This distinction, which is as perfectly well settled,as any to be-found in our books, establishes .the great .principle •thatfa tenant shall not be required to pay rent, even for the part of-the premises which he retains, if he has been evicted from the other part by the landlord. As to the part re-' tained/ihis is deemed such a disturbance, such an injury-to its beneficial enjoyment, such a .diminution of the,consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then/ is a case where actual entry and physical eviction are not necessary to exonerate th.e tenant from the payment of rent; and if the principle be correct as applied to a part of -the premises, why should not the same principle equally apply to the whole property demised, where there has been an obstruction fo its beneficial enjoyment, and a diminution,of the consideration of the contract, by the acts of the landlord, although those acts do not amount ,t,o a physical eviction? If physical eviction be not necessary in the one case, to discharge the rent of the part retained, why should it be essential in the other, to discharge the rent of the wholé ? If I have not deceived myself, the dictinction referred to settles and recognizes the principle for -which th,e plaintiff m error contends, that there -may be a <mask> produced by the acts of the landlord.


The appellant contends that the trial court erred when, at the conclusion of the People’s case, it allowed an amendment to the information so that the information, for the first time, specifically stated that there had been a <mask>. All of the authorities cited in support of appellant’s contention, however, are cases wherein an indictment, and not an information, was sought to be amended and, consequently, are inapposite. There is a vast difference between an information and an indictment in that the latter depends for its validity upon a presentment by a body distinct and separate from the court, i.e., the Grand Jury. Except for changes of nonessential details, pursuant to statutory authority (Code Crim. Pro., § 293), or the addition of related counts (Code Crim. Pro., § 295-j), a court cannot usurp the authority of a Grand Jury by a unilateral amendment of an indictment (People v. Van Every, 222 N. Y. 74). Yet, the court can permit the amendment of an information even though the amendment affects a matter of substance (People v. Easton, 307 N. Y. 336). In the case at *475hand, however, the original information sufficiently stated the matters upon which the defendant was to be tried. The amendment strengthened the information, but, as the amendment was conclusory, it was not strictly necessary in order to sustain a subsequent conviction.


The respondent refused to make further rental payments to the city on the ground that the municipality had failed to provide him with adequate heating and plumbing services in violation of section 755 of the Real Property Actions and Proceedings Law and section 302-a of the Multiple Dwelling Law. In other words, these failures, according to the respondent constituted a <mask> from the premises and relieve him from his obligation to continue rental payments pursuant to the above-mentioned lease.


“There was no <mask> here because the tenant never did abandon the premises (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77), instead continuing its renovation on assurances from the landlord that the problem would be remedied. Nonetheless, as the trial court noted, there was a breach of the lease due to the landlord’s renting of premises it knew to be untenantable. However, this does not automatically trigger a 100% rent abatement, because a tenant in possession still remains obligated to pay rent. Rather, the tenant’s loss should be the difference between the value of the leased premises as they were intended and the value as a result of the breach (City of New York v Pike Realty Corp., 247 NY 245). The measure of such damages remains to be determined. (See, e.g., Greenblott v Catskill Off-Track Betting Corp., 215 AD2d 627; Ciraolo v Miller, 138 AD2d 443.)” Another case having relevancy to the matter at bar on damages is Appliance Giant, Inc. v Columbia 90 Assoc., LLC (8 AD3d at 934), which held:


Granted, the fact that a tenant spends relatively little time in a regulated apartment may not alone suffice for a finding of nonprimary residence, at least in circumstances where the tenant’s absence is attributable to a credible, excusable reason (see, Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946; Katz v Gelman, 177 Misc 2d 83; see also, Claridge Gardens v Menotti, 160 AD2d 544). Significantly, however, the tenant’s attempts herein to explain away her limited use of the regulated apartment premises — centering largely upon an illusory <mask> theory based on claimed asbestos contamination — were flatly (and appropriately) rejected by the trial court. To the extent that tenant sought to justify her frequent and prolonged absences from the subject apartment on the basis of the itinerant nature of her singing career, her unsubstantiated assertions in this regard were not directly addressed by the trial court and, even if accepted, would provide no excusable reason for the tenant’s demonstrated failure to regularly reside in the subject apartment during her stays in New York City.


Petitioner, 169 East 69th Street Corp., is a cooperative corporation and seeks a judgment of possession and a money judgment against respondent, Robert Leland, for maintenance, late fees and legal fees. In asserting the affirmative defenses of breach of the warranty of habitability and <mask>, respondent claims, inter alia, that a "bright light” cast by an illuminated awning erected by petitioner’s commercial tenant of the street level floor, as well as renovations performed by this commercial tenant, amounted to a breach of the warranty of habitability. Respondent also disputes liability for late fees and seeks an award of counsel fees.


The difficulty with the reasoning of the Richburg court is that its logical basis harkens to common-law times, when the tenant’s obligation to pay rent was entirely divorced from the landlord’s duty to maintain the premises. As is stated in one treatise: “At one time, a lease was deemed to be the functional equivalent of a conveyance of land rather than a contract, so that the obligation of the tenant to pay rent was independent of the obligation, if any, of the landlord to maintain the premises in tenantable condition. This meant that, absent adverse conditions sufficiently severe as to constitute an actual or <mask>, the tenant was limited to whatever remedies were contained in the lease. As a result, such tenants generally could not use the withholding of rent as a weapon to compel the landlord to maintain building services. Although the law has changed little with respect to commercial tenants, the law has changed dramatically with respect to residential tenants. A residential lease is now, to a large extent, deemed to constitute a sale of shelter and services and contains an implied warranty of habitability.” (7 Warren’s Weed, New York Real Property, Leasing: Rights & Obligations, § 6.03 [3] [a] [4th ed].)


*444In the event that the traverse hearing is resolved in petitioner’s favor, petitioner also moves to dismiss respondent’s fourth affirmative defense which alleges that respondent was partially evicted from the premises as the result of an alleged water leak. A <mask> occurs when there is a “wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises.” (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82 [1970].) To establish a constructive eviction of the premises, the tenant must abandon the premises. (See Minjak Co. v Randolph, 140 AD2d 245 [1st Dept 1988].) In the instant case, respondent has sufficiently raised a disputed issue of fact as to whether it was constructively evicted from the premises. Respondent alleges that there were continuous water leaks at the premises which rendered portions of the premises unusable, that petitioner knew of the leaks and that pursuant to the lease petitioner is responsible for repairing the leaks. Petitioner claims that it had no knowledge of any alleged leaks and that pursuant to the lease it is not responsible for repairing the alleged leaks. Based on the evidence submitted, the court cannot determine as a matter of law whether the petitioner or respondent is responsible for repairing the alleged leaks pursuant to the lease. Since respondent has sufficiently established material issues of fact with regard to whether it was constructively evicted from portions of the premises, petitioner’s motion to dismiss this affirmative defense is denied.


*837The executrix also claims a <mask> from the apartment. ‘A constructive eviction occurs only where, through the landlord’s acts, the tenant has been substantially deprived of the beneficial enjoyment of the demised premises ” (2 McAdam, Landlord and Tenant [5th ed.], p. 1392) or where “ there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord ” (Tollman v. Murphy, 120 N. Y. 345, 351). The executrix testified to a number of omissions by the landlord which she claims had the cumulative effect of depriving her husband and her of the beneficial enjoyment of the premises and thus evicting her. Most of the matters are of minor importance. The painting and decorating of the apartment and finishing the floors were not completed until more than six weeks after they moved into the apartment. She complained of a failure to finish the closet floors, but there is no basis for finding that the landlord ever agreed to provide wood flooring in the closets. There were leaks in plumbing, temporary failure of an air conditioner, excessive moisture from an air conditioner and difficulties in ventilation of the kitchen, but it would appear that these minor matters were adjusted to the extent that the landlord was obliged to do so. There is no evidence that these conditions persisted up to the time of the abandonment of the premises.


Moreover, there is some authority allowing this type of <mask> even as against residential occupants who are not tenants (see e.g. Almonte v City of New York, 166 Misc 2d 376, 377 [App Term, 2d Dept 1995], citing P & A Bros. v City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267 [1992] and Paulino v Wright, 210 AD2d 171 [1994]).


Second, even if petitioner’s lease request is not interpreted in the manner set forth above, the court rejects respondent’s contention that petitioner did not become a permanent tenant under the RSC and therefore entitled to protection against *306<mask> because she did not expressly request a lease of six months’ duration. Respondent acknowledged its failure to comply with RSC § 2522.5 (c) (2), which required respondent to inform petitioner of her right to request a lease and to become a permanent tenant. As noted above, petitioner expressly indicated an intent to become a permanent tenant. The Appellate Division has made clear that section 2522.5 (c) (2) furthered the goal of the RSL and RSC "of insuring that the rights of hotel occupants not be frustrated due to the occupant’s ignorance of the law.” (459 W. 43rd St. Corp. v New York State Div. of Hous. & Community Renewal, supra, at 514.)


We note that the posture of this litigation has changed since the motion court initially set the undertaking. By this decision, we have modified the injunction to permit the owner to enter the tenant’s space to work on the elevator, and we have affirmed the motion court’s judgment declaring that the owner is not entitled to engage in a <mask>. Accordingly, we remand the matter to determine what undertaking, if any, should be set on the tenant’s preliminary injunction. The court should also determine whether, pursuant to CPLR 6314, the owner should be required to post an undertaking as a result of our modification of the injunction.


In this case, it is undisputed that no force was used in the <mask> accomplished by respondent. Additionally, while self-help evictions are generally not sanctioned, in the case of residential tenancies, this tenancy had many characteristics of a commercial tenancy. Furthermore, no individual who was or claimed to be using the subject premises for living purposes was displaced as a result of respondent’s self-help eviction.


In either event, the petitioner is entitled to continue her occupancy at the Y.W.C.A. residence and the respondent is permanently enjoined from resort to <mask> remedies. Since no proof of damages was offered the petitioner is denied said relief. There is no basis for an award of attorney’s fees and therefore all such fees, and court costs are denied.


*50Where a landlord has reserved its common-law right to peaceably reenter the commercial premises upon breach of a condition in the lease, the law permits the reentry if it can be effected peaceably (Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]). Here, landlord lawfully reclaimed the premises, which is acknowledged by the majority, and landlord’s “cross motion” was unopposed. Indeed, the exhibits annexed to the order to show cause support landlord’s argument that the <mask> was peaceably effected. Tenants’ only argument is the misguided presumption that in a commercial tenancy, a landlord is not permitted to avail himself of self-help. Under these circumstances, the determination of who has the right of possession is so intertwined that joint resolution of the issue is exactly what is contemplated by RPAPL 747. Pursuant to RPAPL 747, the court shall direct that a final judgment be entered determining the rights of the parties.


*308Respondent’s interpretation of RPAPL 711 would permit <mask> of those occupying apartments pursuant to rent-stabilized leases, provided that the occupant had not remained in the premises for at least 30 days. This result is clearly contrary to the intent of the rent stabilization laws which provide that a tenant who moves into a rent-stabilized apartment has many of the primary rights associated with a rent-stabilized tenancy as soon as she signs a lease and assumes occupancy, including paying only the legal regulated rent and not being evicted except for cause.


The Arkansas Supreme Court subsequently has interpreted Gorman broadly, stating that Gorman "outlawed the use of self-help measures to regain property." Duhon v. State , 299 Ark. 503, 774 S.W.2d 830, 835 (1989). Further, considering Gorman and Duhon , the Attorney General of Arkansas has opined that installing a device that would enable a landlord to cut off utility service to tenants in the event of nonpayment of rent would run afoul of Gorman's prohibition of <mask>. See Ark. Op. Att'y Gen. No. 2006-223, 2007 WL 201187 (Jan. 23, 2007). Durbin , 2015 WL 1470141, at *6.


Because the court has found that petitioner is a tenant within the meaning of RPAPL 711, it need not reach the question of whether or not petitioner was additionally protected against <mask> by that section because she was not a "transient”. RPAPL 711 expands the class of people protected against self-help eviction by including certain occupants or residents of a rooming house in a hotel within the definition of tenant. RPAPL 711 does not exclude from its shield against self-help eviction those already recognized under the RSC as a "tenant”, even if they did not occupy their apartment for at least 30 consecutive days.9 Chatham v Chelsea Hotel (NYLJ, Feb. 8, 1995, at 28, col 5 [Civ Ct, NY County]), relied upon by respondent to support its contention that petitioner was not protected against self-help eviction because she was not in occupancy for at least 30 days and was a transient, appears inapposite. To the extent that Chatham is inconsistent with this opinion, the court declines to follow Chatham.


Petitioner in the instant case occupied a room subject to the hotel stabilization provisions of the RSC. Thus, upon requesting a lease while she still was in occupancy, petitioner became a permanent tenant subject to the RSC. In Chatham (supra), on the other hand, the petitioner was merely a hotel occupant who apparently had not paid for a second night when she was ousted from a room not registered with DHCR as rent stabilized. If in fact the room in Chatham was not rent stabilized, the request for a lease would not have made the petitioner a "permanent tenant” protected against <mask>. The Chatham court stated that it did not reach the issue of whether the petitioner was protected by the Rent Stabilization Law because she was not in occupancy for at least 30 days. It is this *309latter holding that this court declines to follow in view of petitioner’s status in the instant case as a permanent tenant under the Rent Stabilization Law, protected against eviction without process of law.10


“For the purpose of regulating the rights of the parties, and giving the statute in regard to notice to quit a fair construction, the law permits the landlord to proceed upon the original default in holding over, without giving the one month’s notice required to institute proceedings against a tenant by sufferance, unless the landlord permitted the tenancy to continue for such a length of time as to impress upon *439the relation the new title of <mask>; but a delay to be called laches sufficient to impress this new relation ought to be of longer continuance than three months and should be accompanied by some evidence of negligence. McAdam on Landlord and Tenant, Sec. 39, p. 132; see, also, Adams v City of Cohoes, 127 N.Y. 175, 183, 184, 28 N.E. 25, 27.” Thus, a failure by a landlord to give at least 30 days’ notice to a tenant by sufferance requires a dismissal of the summary proceeding. See 2 Robert F. Dolan, Rasch’s Landlord and Tenant — Summary Proceedings § 30:39 (4th ed), wherein Judge Dolan writes: “A landlord who has failed to give the statutory notice to quit cannot maintain summary proceedings to remove a tenant by sufferance as a holdover.”


CitiMortgage argued that these documents, "taken together, the deed of trust which creates a <mask> post foreclosure, a copy of the substitute trustee's deed that reflects that [CitiMortgage] [has] legal title to [the Property] combined with the lawful demand sent to the Isaacs and the occupants post foreclosure are the requirements of what's necessary to establish a forcible detainer case." It requested that the trial court take judicial notice of the entire file, and it asked for immediate possession of the Property.


The Walls court’s conclusion that a trespass can ripen into a <mask> is contrary to established principles of law. “An estate at sufferance is an interest in land which exists *718when a person who had a possessory interest in land by virtue of an effective conveyance, wrongfully continues in possession of the land after the termination of such interest” (Restatement of Property § 22; see, Livingston v Tanner, 14 NY 64, supra; 1 Tiffany, Real Property § 174 [3d ed]). It is essential to the creation of this interest that the party previously have had a possessory interest. As the Housing Court correctly held, the occupancy by a trespasser who never had such a possessory interest cannot ripen into a tenancy at sufferance.


*815The special warranty deed in evidence established that McGeary was one of the property's owners. See Rice , 51 S.W.3d at 709 ("To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession."). The Jimenezes' continued possession of the property following McGeary's notices to vacate created a <mask>. See Williams , 2012 WL 1899156, at *2. Evidence of the Jimenezes' tenancy at sufferance, along with the notices to vacate, established McGeary's right to immediate possession of the property. See id. We overrule the Jimenezes' fourth issue.


If Lender acts to have the Property sold after a Breach of Duty as defined in Paragraph 28, I understand and agree that: (A) my right to occupy the Property ceases at the time the Property is sold; (B) I shall have no right to occupy the Property without written consent of the new owner of the Property ... The defining characteristic of a <mask> is the lack of the owner's consent to the tenant's continued possession of the premises. See Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 915-16 (Tex. 2013). Tenants at sufferance remain in possession of the property without the owner's consent after their right to occupy the property has ended. See id. Under the unambiguous language of the Deed of Trust, Reynoso agreed to surrender possession of the Property after a foreclosure sale of the Property, even if Reynoso asserts that the foreclosure sale is wrongful and files suit asking a court to set aside the foreclosure sale. See Hossain , 2015 WL 3751548, at *2-3. If a deed of trust provides that in the event of foreclosure, the grantor in the deed of trust will become a tenant at sufferance if the grantor does not surrender possession, the trial court can resolve possession without resort to title. See Hossain , 2015 WL 3751548, at *2. In such cases, the need to introduce the deed of trust to prove the landlord-tenant relationship does not affect the justice *338(or county) court's jurisdiction because the validity of the title is not in issue. See id. The tenancy-at-sufferance status suffices as a basis for the forcible-detainer action even though the foreclosure sale later might be set aside for wrongful foreclosure or other reasons. See id. *2-3.


The <mask> considered in Livingston v Tanner (supra) was that of a life tenant’s lessee holding over after termination of the life estate. There the remainderman was permitted to recover possession without serving the 30-day notice required for a tenant at sufferance because a statute commanded that one " 'having an estate determinable upon any life * * * who * * * without * * * consent * * *. shall hold over * * * shall be adjudged to be a trespasser.’ ” (Supra, at 68; cf., RPAPL 851; see, RPAPL 713 [6].)


Here, Niti Properties attached to its summary judgment motion (1) the substitute trustee’s deed; (2) the deed of trust establishing a <mask>; and (3) proper notice to vacate the property. It is undisputed that the Arthurs refused to vacate the property. Whether the foreclosure was conducted in violation of the TRO does not bear on the question of superior right to possession. As our sister court explained:


The Housing Court granted the City’s motion for summary judgment, reasoning that contrary to the holding in Walls (supra), a <mask> arises only when one holds over after the termination of a lawful tenancy (Livingston v Tanner, 14 NY 64); that occupants had failed to offer any evidence of a conscious policy by the City to acquiesce in their occupancy; and that a trespass, even of 11 years, could not deprive the City of its legal remedies “if the time frame is within that for adverse possession.”


A tenant at sufferance is one who comes into the possession of land lawfully, and after his estate is ended, wrongfully continues in possession. (2 Bl. Com. 150; 4 Kent's Com. 116.) There is no provision in the agreement that the estate should end at any particular time. Therefore, Mosher has not wrongfully continued in possession, unless the plaintiff or his father, terminated by some act, his lawful term. It was by the deed, and not the death of his father, that the plaintiff acquired whatever rights he may have as against the defendant. Nothing was done to' terminate Mosher’s term, till the 11th day of March, 1858. He remained on the premises lawfully till that day, at all events. Oh that day a notice was served on him¡ requiring him to remove from the premises. The statute reads thus: “ "Whenever there is a tenancy at will or by sufferance, created by the tenant’s holding over his term or otherwisej the same may be terminated by the landlord’s giving one month’s hotice in writing to the tenant, requiring him to remove therefrom.” (Sec. 7, title 4, ch. 1 of part 2 of R. S.) I have showti. that a common law tenancy at will, does not exist between the parties, and as the defendant was lawfully in possession, and was not wrongfully holding over his term on the 11th day of March, it follows that there was no <mask>, at that time; and if not then, there is not now ; for the statute notice of a month, is provided to terminate, not to create a tenancy at will or by sufferance.


I think the affidavit upon which the proceedings were instituted did not show a case of mere <mask> or at will, but a holding from month to month. It appears by the affidavit that Prindle went into possession under an agreement for a written lease, for the term of one year and eight months from the first of September, 1835, and that a few days after he entered into possession he violated the agreement by refusing to accept the lease and execute the counterpart thereof. By that act he became a mere tenant at will or by sufferance, and liable to be ejected immediately. Hegan v. Johnson, 1 Taunt. 149. And he would have continued so, if Anderson had not changed the character of that tortuous holding by receiving rent from him, subsequent to that time, from month to month, at the rate specified in the verbal agreement for a lease. Had it been competent for the owner of land to make a verbal lease for a longer period than one year, under the provisions of the revised statutes, this acceptance' of rent by the landlord, at the rate specified in the original agreement for a written lease would probably be construed to have been a waiver of the agreement to execute a written lease and counterpart [ *619 ] thereof, and to convert the contract into a verbal agreement for a lease for the same period and at the same rent. But as such an agreement would not be valid, the legal construction of the acts of the parties, in accepting and paying rent monthly, was to create a tenancy from month to month, commencing on the first of September, 1835. The tenant was therefore entitled to a month’s notice to quit at the end of some month from the commencement of the tenancy. A notice served on the fourth of April, to *619quit at the expiration of thirty days, or within thirty days, was not sufficient. It is well settled, that where there is a tenancy from year to year, a notice to quit at the expiration of six months is not sufficient, unless that time corresponds with the commencement of the tenancy, so as to terminate a yearly holding. Where the tenancy is from week to week or from month to month a week’s or month’s notice to quit must be given. And in analogy to the notice in the case of a yearly holding, it must be given in reference to the commencement of the tenancy. Doe ex dem Parry v. Hazell, 1 Esp. R. 94. Here the tenancy from month to month commenced on the first of September. The notice to quit, therefore, if intended for the first of May, should have been served on or before the first of April ; and if intended for the first of June, it should have required the tenant to quit at that time, and not within thirty days after service of the notice. No regular notice to quit having been given, there was still a subsisting tenancy from month to month, at the time of the commencement of these summary proceedings to tur.n the tenant out of possession. It is wholly unnecessary, therefore, to consider the effect of the receipt of rent for the month of May, 1836, as a waiver of the previous notice which had been thus irregularly given.


But in order further to consider the case, I will assume that the agreement is a lease, and creates the relation of landlord and tenant. The question then arises, what is the nature of the tenancy ? Is it a tenancy for years ? a tenancy at will ? a <mask> ? or a tenancy from year to year ? It will be well very briefly to consider the nature of these different kinds of tenancies.


After the 2005 proceeding was dismissed, respondent mailed petitioners a letter demanding a new rent-stabilized renewal lease. Petitioners never sent respondent a new renewal lease. Instead, petitioners served respondent with a 30-day notice of termination of <mask>, dated February 27, 2006. Petitioners informed respondent that his tenancy at sufferance was terminated because four years elapsed since the 2002 non-renewal notices.


To the extent that the doctrine of estoppel is applicable to this proceeding at all, it operates against, not in favor of, the respondent. In the proceedings which originated in the Village Court of Walton, the petitioner argued in County Court, on the appeal of this respondent, that General Business Law § 32 was, in effect, a statutory grant of an interest which, coupled with the inaction by the People after notice of the activities of respondent, constituted a <mask> and therefore a demise of the subject real property. Respondent denied this interpretation of the law to the facts in that case, and the court agreed, stating that:


The doctrine in Bradley vs. Covell (4 Cow. Rep. 349), is that a tenant entering for an unlimited period, is a tenant from year to year, and entitled to notice; that a continued possession, or other circumstances, convert a tenancy at will' into “ a <mask> from, year to year,” and imposes the necessity of giving six months notice.” (See also 1 John. R. 325; 8 Cowen, 230; 11 Wend. 619.


But under the new agreement as set forth in the petition, the defendants were four-weekly tenants for an indefinite period, that is to say, from four weeks to four weeks, analogous to month to month, at the option of the landlord. This is in effect the same as a <mask> or sufferance (Witherbee, Sherman & Co. v. Wykes, supra; Hand v. Knaul, supra, 717; citing Banks v. Carter, 7 Daly, 417), and under section 228 of the Real Property Law requires a notice of thirty days to terminate. The tenancy in question is also analogous to the common-law tenancy from'month to month, which required a month’s notice to terminate. (Anderson v. Prindle, 23 Wend. 616.) The petition not having alleged that the defendants were given thirty days’ notice of the termination of the lease, I am of the opinion that it did not state facts sufficient to maintain the proceeding and that it was properly dismissed.


The second question is one which involves the construction of section 232-b of the Beal Property Law. From the evidence presented the tenancy was one from month to month. Therefore the provisions of section 228 of the Beal Property Law do not apply. Section 232-a of the same law applies to New *413York City alone and provides a mandatory method of terminating a tenancy. The section under consideration differs conspicuously from both section 228 and section 232-a aforesaid in not specifying the manner of termination of a month-to-month tenancy. It provides that such a, tenancy may be terminated by either landlord or tenant notifying the other at least one month before the expiration of his term of his election to terminate. It is urged by the tenant that the requirements of the maimer of serving a precept are the requirements which control here. The juxtaposition of the two sections mentioned and the requirement in one section for a specified mode of service of notice and the silence on that score in the subsequent section negative the argument of the tenant. The most obvious method of termination would be by written notice personally delivered. But it is equally obvious that situations will arise where personal service cannot be made. If the tenant is not home, but there is someone there of suitable age, by analogy with the requirements for termination of a <mask>, it may be left with a person of suitable age and discretion. But in the event the tenant is absent, no one else present, or neglects to answer the door, what method is to be employed? The main object is to insure the giving of notice of termination of tenancy. Affixing to the door of the dwelling or apartment would answer the requirement. But circumstances might be such that notice given in that manner would insure the tenant’s not receiving notice. The service of notice to terminate a month-to-month tenancy is not a court proceeding. Accordingly the notice must be served in a manner calculated to attain the end, viz., notice to the tenant. McAdam in his work on Landlord and Tenant (5th ed., p. 792) notes that a tenancy from month to month requires one month’s notice to quit to put an end to the term. “ This is not under any statute but is probably due to its analogy to a tenancy at will or by sufferance which is for an indefinite térm, and requires a notice of thirty days to terminate.”


¥e ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify. The referee has rejected, as fraudulently procured, the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a <mask>. We see no reason to differ from the referee in his finding of fact in this respect.


A proceeding under RPAPL 713 (subd 3) is maintainable after an entry or intrusion upon land without right or claim of right and which has neither ripened into a <mask>, for a term, nor is an unrevoked license. The touchstone is a nonpermissive entry followed by the absence of any acts, primarily on the part of the owner, such as the acceptance of rent, which would ripen the possession into any form of tenancy. Alternatively, a void entry may not allow the use of a squatter proceeding where there has been permission or license without subsequent revocation thereof. (Williams v Alt, 226 NY 283; Kaplan v Volk, 273 App Div 215; Mahoney v Hoffman, 58 Misc 217, supra; Fisher v Queens Park Realty Corp., 41 AD2d 547, supra; Century Paramount Hotel v Rock Land Corp., 68 Misc 2d 603; MacArthur v Walter, 182 NYS 690; Statement, Inc. v *199Pilgrim’s Landing, 49 AD2d 28; Matter of Robbins v De Lee, 34 AD2d 870; Kaufman v Zash, 7 AD2d 927, affd 7 NY2d 831; Rosefan Constr. Corp. v Salazar, 114 Misc 2d 956; Murawski v Melkun, 71 Misc 2d 575; Carman v Fox, 86 Misc 197, supra; Stier v President Hotel, 28 AD2d 795; Altschuler v Lipschitz, 113 NYS 1058.)


Now, if we look at the Code (sec. 2244) it will be seen that the person against whom summary proceedings are taken may put in an answer denying generally the allegations, or specifically, any material allegation. He is, therefore, limited to denials. And there is no provision for affirmative allegations. Suppose, then, that the petitioner alleged a <mask>, and the respondent denied it. On the trial of that issue could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was, therefore, voidable, not void, as in a case of usury ? I find no case where it has been held that any question, such as here arises, can be tried in summary proceedings.


(1) For removal of a tenant whose entry into possession is simply without claim of right (Mahoney v Hoffman, supra; Kaplan v Volk, supra). (2) To restore a tenant in common to an undivided right of possession subsequent to an ouster (cf. RPAPL 633; Trustees of Church & Soc. v Johnson, 66 Barb 119, supra; Matter of Panzica v Cimino, 21 Misc 2d 1076, supra). (3) To obtain unrestricted possession from a lessee, not a “tenant”, of premises capable only of exclusive use. (Hall v Boyd, 347 Ill App 60, supra; Schwartz v Serino, 116 NYS2d 882, supra.) However, where the original entry is with permission, the appropriate vehicle for removal is RPAPL 711. (Fisher v Queens Park Realty Corp., supra; Murawski v Melkun, supra.) Finally, where the original entry was without permission, but which ripened into a <mask>, the use of RPAPL 711 is required. (Carmon v Fox, supra.)


After the abandonment by the parties of any attempt to close the lease, there is no question that the subsequent course of conduct evolved into a tenancy agreement. The entry on the premises was pursuant to an informal oral agreement, barred by the Statute of Frauds. The tenancy created in such circumstances is a <mask> (Loughran v. Smith, 75 N. Y. 205; 2 Rasch, Landlord and Tenant and Summary Proceedings, § 1025).


*91At common law this notice was for half a year, terminating with the year. This the wisdom of its judges deemed but a reasonable notice to a lessee from year to year of a farm or a tenement, that he must turn out. But this common law right, was of course, subject to legislative control, which could abridge or take it away at pleasure. This power over the subject has been exerted by the legislature of this state in the enactment of § 7 of title 4th, ch. 1, p. 2 of the R. S. (2d vol. 3d ed. p. 30), in these words; “ Wherever there is a <mask>, or by sufferance, created by a tenant’s holding over his term, or otherwise, the same may be terminated by the landlord’s giving one month’s notice in writing to the tenant requiring him to remove therefrom.”


Section 232-c of the Beal Property Law was enacted by the Legislature in 1959 to create a <mask> when a tenant held, over after the expiration of his term with the consent of the landlord. In specific terms, it states that acceptance of rent by a landlord creates a month-to-month tenancy only. Its provisions do not authorize the landlord to impose a liability on the tenant, without its consent, for increased rental following expiration. The statute was interpreted by the Court of Appeals in Jaroslow v. Lehigh Val. R. R. Co. (23 N Y 2d 991) following an apparent conflict in the views of the Appellate Terms of the First and Second Departments, concerning its intent and meaning. Said the court: ‘ ‘ Section 232-c of the Beal Property Law changes the common-law rule relating to creation of a holdover tenancy. It provides that the mere holding over by a tenant whose term is longer than one month does not allow the landlord to create a holdover tenancy without his acceptance of rent from the holding over tenant * * * An action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent.” Accordingly, the city may not maintain an action for increased rent. The first cause of action will be dismissed.


The lessor has the right to change the relations existing between himself and his tenants, if they prefer that he should, and it may well be conceived that it might be advantageous to the reversion, to relieve the estate from the burden of a long lease. The grant of a second lease, however, is inconsistent with the continued existence of the .prior one, and the effect of that inconsistency is equally binding upon both parties, lessor and lessee. (Cases, stcpra.) The rigorous rules which prevail in reference to sealed instruments generally, do not apply to leases which, as we have seen, though resting in covenants, may be surrendered — that is, yielded up and canceled — *162and the parties released, therefore, from their covenants, by acts which establish it, or by operation of law. The only condition which seems to attach, by the law of this State, when the surrender is by a second lease between the same parties, during the life of the first, is that the second agreement or lease shall be valid, according to the intent of the parties. On this subject a statement of the defendant Hobby, upon cross-examination, is important. He was asked whether he meant to say, if he stayed on the premises the whole ten years the reduced rent was to be continued, and he answered in the affirmative. It appears clearly, therefore, that in his interpretation and understanding of the agreement, it had relation to the whole term of the lease, subject only, to a sooner determination of the demise by a sale of the premises. This is confirmed by the provision giving him the right to remove, if the premises were sold, after three months’ notice of his intention so to do. The new lease thus asserted was invalid as such, resting in parol. It was for a period of ten years, in contemplation of the parties, and made the defendants tenants at will. It is within the adjudication of Schieffelinw Carpenter [supra), in which it appeared that the alleged ■new letting was to a stranger, by parol for eight years. An implied <mask> only was created, it was said, which enabled the tenants to hold from year to year, for the purpose of notice to ■quit, but which they could terminate at any moment they pleased. The agreement conferred, it was also said, no rights upon the plaintiff, further than to recover his rent while they continued to occupy, and, perhaps, a quarter’s rent if they abandoned the occupation, .after the commencement of a quarter and before its termination. It was suggested, also, that- if the agreement had been made with -the original tenant, the result would be the same. The second lease failed to have the effect claimed, namely, to pass the interest in the premises according to the contract, or, in other words, to carry into legal effect the intent of the parties making it, and was declared to be invalid. The same result attains here- The agreement cannot be effectuated. It fails to satisfy the rule of law stated. It is not valid. It cannot carry out the design of the parties, which was to extend it over the period of the demise, and which could not be done by parol. That is the only consideration, if any, which seems to be demanded.


In Post agt. Post, Justices Willard and Hand agreed that a tenancy from year to year, could be terminated only at the end of the year. Justice Willard thought, however, that no notice -would be necessary before instituting summary proceedings, and cited Nichols agt. Williams, which, however, was before the Eevised Statutes. Hand, Justice, thought notice would be necessary. But as Post agt. Post was a case strictly of <mask>, the question of notice before summary proceedings in case of tenancy from year to year, was not adjudicated. The rule held by the court for the correction of errors, in Anderson agt. Prindle, (23 Wend. 616,) would require that a month’s notice to quit at the end of some year,, counting from the commencement of the tenancy, must be given, before summary proceedings can be maintained.


The same learned commentator remarks (ib. pp. 115-16), that the Roman law, like the English, was disposed as much as possible, and upon the same principles of equity, to construe <mask> to a holding from year to year, and to give to the tenant the reasonable right of notice to quit; that, “ when the sages at Westminster were called to examine the same doctrines, with a strong if not equally enlightened sense of justice, they were led to form similar conclusions, even though they had to contend in the earlier period of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy and the scrupulously technical rules of the common law.”


Finally, entry under a void lease does not necessarily allow eviction under RPAPL 713 (subd 3), even assuming that the lease does not create the right of a cotenancy nor a <mask>. The court’s analysis indicates that two diverse or antagonistic lines of cases do not exist, contrary to the views of the parties. In fact, all cited cases in the area are harmonious.


In this case, petitioner retained a reversionary interest in this apartment as evidenced by all her furnishings she left in the apartment together with personal belongings stored in a foyer closet. Petitioner has paid rent to the landlord at all times and continues to pay rent in her own name. Based on the conduct of the parties and the arrangement of respondent’s occupancy of this apartment, the court finds that the understanding between the parties was that either party may terminate the <mask>.


In Bradley vs. Covel (8 Cowen R. 349), Woodworth," J., “ a <mask> is held to be a tenancy from year to year, merely for the sake of a notice to quit;” and the courts of this country have in repeated instances .used the phrase “ tenant at will” and “tenant from year to year” indiscriminately. By. a statute of this state (§ 1 of title 2; art. 1 ch. 1 of pt. 2 of the R. S. 2d vol. 3d. ed. p. 9), “ Estates in lands are divided into estates of inheritance, estates for life, estates for years and estates at will and by sufferance.”


<mask> is created by grant and contract by one person, who lets lands to another to hold at the will of the lessor. The characteristics of such a tenancy are uncertainty with respect to duration and the right of either party to terminate it by proper notice. Both the entry and occupation are lawful, but for no definite term of possession. A landlord’s mere consent to the occupation of his land by another does not necessarily imply consent to such occupation as tenant. (Thomp. Real Prop. §§ 962, 963.)