Barash v. Pennsylvania Terminal Real Estate Corp.

On September 15, 1967, Barash (Plaintiff) leased office space from the Pennsylvania Terminal Real Estate Corp. (Defendant). The windows to the office were sealed and the air supply and circulation was entirely under Defendant’s control. Before entering the lease, Defendant represented to Plaintiff that the building would either be air-conditioned or have a natural and continuous flow of air through the building’s duct system. Plaintiff signed the lease relying on Defendant’s representations. However, the lease itself only required Defendant to provide air cooling from June through September from 9 am to 6 pm. The lease also contained a merger clause stating that Defendant made no representations or promises that were not expressly in the lease. On May 15, 1968, Plaintiff took possession of the office. At 6 pm, Defendant turned off the air to the office. Plaintiff states that the office became so hot that it became uninhabitable. Defendant refused to provide after-hour ventilation unless Plaintiff paid $25 per hour. Plaintiff refused to pay rent and sued alleging that Defendant’s failure to provide a continuous flow of fresh air after hours and on weekends constituted an actual partial eviction. The Appellate Division ruled in Plaintiff’s favor.