Feldman v. Park Rug Shops, Inc. , 10 A.D.2d 732 ( 1960 )

In an action to recover $2,250, representing rent for the months of June and July, 1958 at a rental of $1,000 a month, and a counsel fee of $250, pursuant to the terms of a written lease, the appeal is from a judgment, entered upon a directed verdict, in favor of respondents. Judgment insofar as it is in favor of respondents for $1,000, representing rent for the month of July, 1958, reversed, action severed, and a new trial granted as to the issues raised by the pleadings with respect to the rent for that month, with costs to abide the event. Judgment insofar as it is in favor of respondents for $1,397.60, representing rent for the month of June, 1958, a counsel fee, and costs, affirmed, without costs. In our opinion, the facts adduced presented triable issues for submission to the jury. It should be noted, however, that since appellant concededly occupied the premises for the month of June, 1958, there is no issue as to the rent for that month, as the defense of constructive eviction is not available for a period which expired before the tenant vacated the premises. (City of New York v. Pike Realty Corp., 247 N. Y. 245.) Beldoek, Acting P. J., Ughetta, Kleinfeld, Christ and Brennan, J J., concur.