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Barash v. Pennsylvania Terminal Real Estate Corp.

26 N.Y.2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707 (1970)

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Barash v. Pennsylvania Terminal Real Estate Corp.

New York Court of Appeals

26 N.Y.2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707 (1970)

Facts

On September 15, 1967, Barash (plaintiff) leased office space from the Pennsylvania Terminal Real Estate Corp. (landlord) (defendant). The windows to the office were sealed and the air supply and circulation was entirely under the landlord’s control. Before entering the lease, the landlord represented to Barash that the building would either be air-conditioned or have a natural and continuous flow of air through the building’s duct system. Barash signed the lease relying on the landlord’s representations. However, the lease itself only required the landlord to provide air cooling from June through September from 9 am to 6 pm. The lease also contained a merger clause stating that the landlord made no representations or promises that were not expressly in the lease. On May 15, 1968, Barash took possession of the office. At 6 pm, the landlord turned off the air to the office. Barash states that the office became so hot that it became uninhabitable. The landlord refused to provide after-hour ventilation unless Barash paid $25 per hour. Barash refused to pay rent and brought suit alleging that the landlord’s failure to provide a continuous flow of fresh air after hours and on weekends constituted an actual partial eviction. The Appellate Division ruled in Barash’s favor.

Rule of Law

Issue

Holding and Reasoning (Breitel, J.)

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