Judicial Insight
Back to feed
(tenant's claim )CivilCourt of AppealsAppeal

H. Roske & Assoc. LLP v. ESRT Empire State Bldg. LLC

Court
Appellate Division of the Supreme Court of the State of New York
Decided
Oct 6, 2026
Docket
Index No. 655283/24|Appeal No. 7143|Case No. 2025-05064|
Judges
Not listed
Cited as2026 NY Slip Op 05723
Detailed analysis & 3-line summary

AI breakdown

Analyzed Oct 7, 2026

Where this case stands

  1. Supreme Court: granted defendant's motion to dismiss the complaint.

  2. This decision · Appeal

    (tenant's claim )

TL;DR

  1. 1The tenant claimed they were pushed out of their lease space.
  2. 2The court ruled the tenant couldn’t sue since they waived those rights in their lease.
  3. 3The main reason was the lack of any breached lease terms supporting their claim.

Key issues

  1. 1

    Did the tenant properly waive their rights to claim constructive eviction?

    Holding · The court found the tenant waived those rights in the lease.

  2. 2

    Was the tenant's claim for constructive eviction properly asserted?

    Holding · The court stated the claim was not adequately supported by facts.

Why it matters

This case highlights the importance of lease agreements and the rights tenants give up.

The AI breakdown is a reading aid, not legal advice. Always check the opinion for the exact wording.

If you were the judge?

A commercial tenant claims they were pushed out of their space. Did they have grounds for a legal claim?

  1. 1A commercial tenant signed a lease that waived their rights for constructive eviction.
  2. 2They now claim they were evicted from their space without any legal basis found in their lease.
  3. 3The court must decide if the tenant can pursue their case despite the lease waiver.

Did the tenant have the right to claim constructive eviction?

Parties

  • Appellant

    H. Roske & Assoc. LLP

  • Appellee

    ESRT Empire State Bldg. LLC

Roles are inferred from the case caption.

Opinion of the court
H. Roske & Assoc. LLP v ESRT Empire State Bldg. LLC 2026 NY Slip Op 05723 October 6, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. H. Roske & Associates LLP, Plaintiff-Appellant, v ESRT Empire State Building LLC, Defendant-Respondent. Decided and Entered: October 06, 2026 Index No. 655283/24|Appeal No. 7143|Case No. 2025-05064| Before: Mendez, J.P., Rodriguez, Pitt-Burke, Rosado, JJ. H. Roske & Associates LLP, New York (Steven A. Lucia of counsel), for appellant. Dewey Pegno & Kramarsky, LLP, New York (David S. Pegno of counsel), for respondent. [*1] Order and judgment (one paper), Supreme Court, New York County (Lyle E. Frank, J.), entered June 6, 2025, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs. Supreme Court properly granted defendant's motion because plaintiff, a commercial tenant, expressly waived its constructive eviction rights in the lease and is therefore precluded from now asserting a constructive eviction cause of action (see 558 Seventh Ave. Corp. v E&B Barbers Inc., 237 AD3d 635, 636 [1st Dept 2025]; Schwartz, Karlan & Gutstein v 271 Venture, 172 AD2d 226, 228 [1st Dept 1991]). Even if plaintiff had not waived its rights, the claim was not sufficiently alleged in the complaint, and the affidavits do not explain how plaintiff was "substantially and materially deprive[d] . . . of the beneficial use and enjoyment of the premises" such that it was constructively evicted (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]; see Flatiron 30 LLC v Continuum Co. LLC, 227 AD3d 463, 464 [1st Dept 2024]; cf. Koretz v 363 E. 76th St. Corp., 178 AD3d 445, 446 [1st Dept 2019]; Minjak Co. v Randolph, 140 AD2d 245, 246-247 [1st Dept 1988]). The complaint was also properly dismissed because plaintiff does not identify any provision of the lease that was breached (see e.g. 75 First Ave. Club LLC v United Glass Sys. Corp., 223 AD3d 491, 493 [1st Dept 2024]; Kraus v Visa Intl. Serv. Assn., 304 AD2d 408, 408 [1st Dept 2003]). In view of the foregoing, we need not reach the remaining arguments. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 6, 2026
View on CourtListener