H. Roske & Associates LLP v. ESRT Empire State Building LLC: First Department Enforces Tenant's Waiver of Constructive Eviction

On October 6, 2026, New York's Appellate Division, First Department unanimously affirmed the dismissal of a commercial tenant's suit against its landlord, ESRT Empire State Building LLC. The court held that H. Roske & Associates LLP had expressly waived constructive eviction rights in its lease, and that even without the waiver its pleadings did not show the substantial loss of use the claim requires. Its breach-of-lease claim also failed because it identified no lease provision that was breached.

Why it matters

The ruling reaffirms that New York courts will enforce a commercial tenant's lease waiver of constructive eviction, one of the few self-help defenses tenants use to stop paying rent or exit a space. For office landlords, a clearly drafted waiver can end such a claim at the pleading stage. For tenants, the decision is a reminder to negotiate those waivers before signing and to plead the specific lease clauses a landlord has violated.

Case timeline · 2 entries Latest: October 6, 2026 — Appellate Division, First Department unanimously affirms

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