## Facts

- Seymour Barash leased office space in a newly constructed, sealed-window, fully air-conditioned office building owned by Pennsylvania Terminal Real Estate Corporation.
- Barash alleged the landlord’s agents orally promised that a duct system would provide a natural, continuous flow of fresh air during evenings and weekends even when the building’s air-conditioning and heating systems were off.
- The written lease required ventilation and air cooling only during specified business hours and seasons and included a merger clause disclaiming representations not stated in the lease.
- After Barash took possession, the landlord shut down air supply after 6 p.m.; Barash alleged the premises became hot and stuffy and effectively unusable.
- The landlord refused to provide after-hours ventilation unless Barash paid an additional hourly charge.
- Barash withheld rent and sued, alleging (1) partial actual eviction relieving him of rent despite continued occupancy, and (2) reformation of the lease based on fraudulent inducement and mistake.

## Issues

1. Whether a landlord’s refusal to provide fresh air/ventilation during evenings and weekends in a sealed, air-conditioned building constitutes a partial actual eviction relieving the tenant of rent while the tenant remains in possession.
2. Whether the tenant stated a claim for reformation of the lease based on alleged fraudulent oral representations and mistake despite a merger clause.

## Decision

- The Court of Appeals reversed the order below and granted the landlord’s motion to dismiss for failure to state a claim.
- The court held the pleaded interference with ventilation did not constitute partial actual eviction because the tenant was not physically excluded from any definite portion of the premises and remained in possession.
- At most, the allegations described constructive eviction, which does not relieve rent unless the tenant abandons the premises.
- The court dismissed the reformation claim because the pleading did not sufficiently allege the type of mistake and fraud required for equitable reformation.
- A partial dissent would have allowed the reformation cause of action to proceed.

## Legal Principles

- Actual eviction requires a wrongful act resulting in physical expulsion or exclusion from the premises (or a definite portion of them), not merely impaired use due to service failures.
- Partial actual eviction generally contemplates physical dispossession from an identifiable part of the leased space; substantial interference with building services, without physical exclusion, is not enough.
- Constructive eviction requires conditions so intolerable that the tenant is forced to leave; rent abatement under this theory requires abandonment of the premises.
- A merger clause does not automatically bar claims grounded in fraud, but reformation demands a strong showing—typically mutual mistake or unilateral mistake coupled with fraud—pleaded with sufficient specificity.

## Conclusion

The court held that the tenant’s allegations of inadequate after-hours ventilation did not amount to partial actual eviction because there was no physical exclusion from any part of the premises, and continued occupancy barred rent relief under constructive eviction; the reformation claim was also dismissed for insufficient allegations of fraud and mistake.


Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (N.Y. 1970)