A residential tenant may defend a non-payment proceeding by stating there are conditions in the apartment that the landlord refuses to repair. Real Property Law 235-b provides an implied warranty of habitability for residential leases which can result in a rent abatement. This statute does not apply to commercial leases.
There is, however, a concept known as partial actual eviction that does apply to commercial leases. If the Landlord seizes a portion of the tenant’s space or if the tenant is physically removed from a portion of the premises by the Landlord, i.e. a portion of the space is seized by the Landlord for the use of the common areas, or a portion of the premises is physically blocked, i.e. door is sealed, or a hallway lavatory is leased to another tenant for its exclusive use, or access to the elevators is blocked, the obligation to pay the rent for the entire premises is abated. The Tenant will not receive a pro rata rent abatement as it would with a partial constructive eviction. Instead, there will be an abatement of the full rent.