Judge Susan Avery
Tenant alleged a general denial to allegations by landlord in this nonpayment proceeding, stating there were conditions in the subject premises which needed repair that landlord failed to provide. In numerous two-attorney stipulations, tenant was granted a vacatur of a default and addressed conditions needing repair in the apartment. Tenant now moved for leave to interpose an amended answer seeking to add affirmative defenses, including allegations that there were conditions in need of repair, and that the building was without water, heat and electricity causing tenant’s constructive eviction as a result of the damages caused by Hurricane Sandy. The court noted that while it has been held that the common law “Act of God” doctrine was preempted by obligations in statutes mandating warranty of habitability in every residential lease, this court held that damage alleged to have been caused by such acts of nature, including Hurricane Sandy, could not support a defense of constructive eviction as a crucial element of the defense was lacking. It ruled there was no allegation that tenant actually abandoned possession of the apartment, thus the constructive eviction claim was not viable. Hence, the addition of such affirmative defense was denied, while others were granted.
