Unlike residential tenants, commercial tenants do not get much protection from landlord-tenant law. While New York upholds the freedom of parties to contract, their statutes provide more protection to its commercial tenants than other states.
Defenses to Commercial Tenant Law
In New York, there are several defenses that a business can use against an eviction lawsuit for the non-payment of rent. They include:
Untenantable and Unfit for Occupancy: a business may claim that the building is "untenantable and unfit for occupancy" under New York statute. For example, the tenants of the offices that were decimated by the 9/11 attacks do not have to continue to pay rent, even if the lease does not anticipate this occurrence.
Landlord Interferes with Building Services: New York makes it a crime for a landlord to intentionally interrupt building services that are "proper and customary" to the use of the building. For example, a business may stop paying rent if a freight elevator it relies on is shut down.
Committing Waste: neither the landlord nor tenant of a New York commercial property may "commit waste." Committing waste occurs when a party allows a building to deteriorate to the point of neglect and decay. The landlord must prevent a building from decaying into "urban blight."
Failing to Provide Essential Services: businesses often fail to specify in the lease all the services they will need to operate their businesses, such as a constant gas supply. If it is not mentioned in the lease, and the gas shuts off, the tenant should not plead constructive eviction (meaning that the landlord is doing something that has the affect of forcing the tenant out), because then the tenant has to move out. The tenant should claim actual eviction - even the lost use of a parking lot or entry door may constitute actual eviction. This will permit the business to stay in the property.
Short Notice: New York business tenants have successfully defended eviction notices given on short notice, based on the developer's grandiose schemes of a new development such as a shopping center or residential condominium. Businesses can often get rent abatement when the landlord starts a flurry of construction around the business without notice.
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