Petitioner brought this nonpayment proceeding to recover rent reserved under a lease. The court conducted a trial on October 6, 2008 and October 10, 2008. Now, after considering the testimony of the witnesses and the other evidence, the court makes the following findings of facts, reaches the following conclusions of law, and grants respondents a judgment dismissing the proceeding.

Petitioner and respondents entered into a lease dated October 17, 2006 for a period of one year beginning December 1, 2006. Respondent McGowan testified that respondents signed the lease for the premises (apt. 2) after being shown a different apartment in the same building but in the same line and with the same layout, and after being told by petitioner (or in petitioner's presence by her real estate broker) that apt. 2 was being renovated but that it would be ready for occupancy around December 1, 2006. The court finds that this testimony was credible. In early December, 2006 respondents were told that the premises were ready for occupancy and on December 7, 2006 they moved in.

Although there was not on October 17, 2006 a roof deck, the lease for the premises provides for the same. The rider to the lease provides at its third paragraph that respondents would have exclusive use of the roof deck and that [*2]respondents would not have more than 10 people on it at any one time; at its twelfth paragraph the rider provides that a roof deck would be completed by "February 15, 2006 [sic]."

Petitioner did not build a deck on the roof on or after October 17, 2006 and she did not start building a deck on the roof at any time ^[FN1]. At first, petitioner testified that she had not been able to begin construction of a roof deck in a timely way because she had had to go abroad to attend a daughter's wedding; later, petitioner conceded that she had not gone to the wedding ^[FN2]. The court holds that petitioner's purported excuse is legally insufficient.

In Fifth Avenue Estates, Inc. v Scull, 42 Misc 2nd 1052 (App Term, 1st Dep't, 1964) the court held that there had been an actual partial eviction, and that the landlord might not recover any rent otherwise due under the lease, where the parties' lease provided that apartment was to consist of 11 rooms, but in fact the apartment consisted of only 10 rooms because it did not include "a servant's room which was adjacent to a service hallway outside the apartment." In 524 West End Ave. Inc. v Rawak, 125 Misc 862 (App Term, 1st Dep't, 1925) the court held that there had been an actual partial eviction, and that the landlord might not recover any rent otherwise due under the lease, where the right to occupy the premises demised to the tenant included the right to use jointly with another tenant in another apartment the maid's lavatory in the hallway but the landlord had deprived the tenant of the use thereof by leasing the lavatory exclusively to another tenant.

The court finds that the roof deck here is analogous to the servant's room outside of the apartment in Scull. The court holds that there was an actual partial [*3]eviction and therefore that petitioner may not collect the rent reserved in the lease. The court dismisses the proceeding. "Superficially it may appear harsh to deprive the landlord of the entire rent for loss of one room out of eleven. In fact, the rule is neither harsh nor unfair. Tenant is entitled to all the space for which he agreed to pay; and he need not accept less." Scull, supra, at 1055.

The court finds it unnecessary to address the parties' other arguments.

The court will mail copies of this decision and order to the parties, who shall retrieve their exhibits from the Part N clerk by November 17, 2008.DATED: October 31, 2008

New York, New York

Gary F. Marton,J.H.C.