Birchwood Associates v. Stern
| Decision Date | 08 November 1976 |
| Citation | 88 Misc.2d 937,390 N.Y.S.2d 505 |
| Parties | BIRCHWOOD ASSOCIATES, Respondent, v. Miriam STERN, Appellant. |
| Court | New York Supreme Court |
Katz, Wittenberg, Levine & Silverman, New York City (Michael S. Harris, New York City, of counsel), for appellant.
Harold I. Reichel, Mineola, for respondent.
Before SCHWARTZWALD, P.J., and PINO and BUSCHMANN, JJ.
The judgment of the court below (see 86 Misc.2d 607, 383 N.Y.S.2d 175) should be affirmed with $10 costs.
Defendant had vacated her apartment on November 1, 1975, although her lease did not expire until June 30, 1977. Plaintiff having re-rented this apartment on February 1, 1976, is entitled to prevail on its cause of action to recover rent for November 1975 through January 1976.
The court below, rejecting defendant's contention that plaintiff failed to mitigate damages, held that there is no such duty imposed upon a landlord. This holding is a reiteration of the long standing rule in New York (Becar v. Flues, 64 N.Y. 518; Sancourt Realty Corporation v. Dowling, 220 App.Div. 660, 222 N.Y.S. 288; Rottkamp v. Eger, 74 Misc.2d 858, 346 N.Y.S.2d 120; 2 Rasch, New York Landlord and Tenant (2d ed.), § 875). It should be noted, however, that there seems to be a trend whereby the courts have been modernizing traditional concepts of landlord and tenant law (e.g. Tonetti v. Penati, 48 A.D.2d 25, 30, 367 N.Y.S.2d 804, 808; 57 E. 54 Realty Corp. v. Gay Nineties Realty Corp., 71 Misc.2d 353, 335 N.Y.S.2d 872). Some courts have held that a landlord is obligated to attempt to relet premises where a tenant vacates before the expiration of the lease (Gracie Towne House v. Weinstein, NYLJ March 14, 1973, p. 17, col. 4, App.Term, 1st Dept.; Parkwood Realty Company v. Marcano, 77 Misc.2d 690, 353 N.Y.S.2d 623; Sherman Taylor Corporation v. Cohen, NYLJ July 10, 1973, p. 10, col. 8, Civ.Ct., N.Y.Co.; see also Howard Stores Corporation v. Robison Rayon Co. Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861). We need not decide whether this rule should be adopted because it is apparent from the papers submitted on the motion for summary judgment that plaintiff diligently attempted to relet the premises.
All concur.
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Rubin v. Dondysh
...and before the expiration of the lease (see, Lefrak v. Mandalay Leasing Co., 93 Misc.2d 632, 403 N.Y.S.2d 397; Birchwood Associates v. Stern, 88 Misc.2d 937, 390 N.Y.S.2d 505). In both Lefrak and Birchwood, dealing with residential leases, the Court found it unnecessary to pass upon the mit......
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...77 Misc.2d 690, 353 N.Y.S.2d 623; but see Birchwood Association v. Stern, 86 Misc.2d 607, 383 N.Y.S.2d 175, aff'd 88 Misc.2d 937, 390 N.Y.S.2d 505 (App.Term, 2nd Dept., 1976) The Court of Appeals has now revisited the mitigation issue in Holy Properties, Ltd. v. Kenneth Cole Productions Inc......
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Paragon Industries, Inc. v. Williams
...remarked upon these decisions and this trend of "modernizing traditional concepts of landlord and tenant law" (Birchwood Assoc. v. Stern, 88 Misc.2d 937, 390 N.Y.S.2d 505; see also Lefrak v. Lambert, 93 Misc.2d 632, 403 N.Y.S.2d 397), it has not previously had occasion to pass upon the issu......
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