Building Supervision Corp. v. Skolinsky

• Decision Date: 23 May 1966
• Citation: 50 Misc.2d 375,270 N.Y.S.2d 454
• Parties: BUILDING SUPERVISION CORP., Plaintiff, v. Jane SKOLINSKY and Margaret Morrison, Defendants.
• Court: New York City Court

Page 454

270 N.Y.S.2d 454

50 Misc.2d 375

BUILDING SUPERVISION CORP., Plaintiff, v. Jane SKOLINSKY and Margaret Morrison, Defendants.

Civil Court of the City of New York, New York County, Trial Term, Part 14.

May 23, 1966.

Joseph Heller, New York City, for plaintiff; Jacob D. Menkes, New York City, of counsel.

Jane Skolinsky and another in pro. per.

ARNOLD L. FEIN, Judge.

The endorsed complaint pleads:

'Action for rent for Oct. & Nov. 1965, for 4th floor apartment at premises 26 E. 33rd St., N.Y. Pltf. is landlord and defendants, tenants, under lease dated 6/17/63 expiring 6/30/67 made in N.Y. County, totalling $300.00, advertising apartment for re-rent, $67.12, repairing chime doorbell $12.50; painting apartment $105.00. Real Estate Commission for re-renting apartment $150.00, total $634.62 less security of $150.00 leaving a balance of $484.62. Interest from Nov. 1, 1965.'

Defendants, appearing in person, admit execution of the lease (which expires by its terms, 6/30/66, not 6/30/67) and that they removed from the premises prior to October 15, 1965, without paying October rent. Although not formally pleaded, defendants allege a surrender and acceptance in that: (1) defendants wrote to plaintiff, September 20, 1965, stating it was imperative for defendants to remove from the apartment by October 15, because the health of one of them required an elevator apartment, and the other could not 'carry the rent alone,' and plaintiff could 'retain the security in lieu of October rent'; (2) plaintiff failed to respond thereto until after defendants had moved out; (3) plaintiff advertised the apartment for rent commencing October 13, 1965 at a higher rent; (4) plaintiff re-entered on or about October 14, 1965; and (5) plaintiff rented the apartment to new tenants at a higher rental, sometime in November 1965.

On October 14, 1965, plaintiff wrote defendants that the doctor's letter would not relieve them from their obligations under the lease and that the return of a door chime button allegedly removed by defendants would be appreciated. Commencing October 13, 1965, plaintiff advertised the apartment for rent at a higher rental, having re-entered on or about that date. The apartment was rented commencing December 1, 1965 for $165.00 per month.

Tenants' September 20 letter and subsequent voluntary removal, prior to receipt of plaintiff's letter, did not accomplish a surrender and acceptance. (Bedford v. Terhune, 30 N.Y. 453; Sallah v. Myriad Inv. Corp., 150 Misc. 722, 269 N.Y.S. 63). That plaintiff did not respond until after tenants moved out is immaterial. Mere silence of a landlord in the fact of such a letter, even including a tender of the keys is not sufficient to found an acceptance. (Gray v. Kaufman Dairy & Ice Cream Co., 162 N.Y. 388, 56 N.E. 903, 49 L.R.A. 580; Learned v. Tillotson, 97 N.Y. 1; Sallah v. Myriad Inv. Corp., supra). Absent express agreement, surrender and acceptance--terminating tenant's liability--can only be founded upon some unequivocal action by the landlord inconsistent with (1) the landlord-tenant relationship, and (2) the survival clauses in the lease continuing the liability of the tenant depite re-entry by the landlord and renting to others. (Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97, 59 A.L.R. 1015; Michaels v. Fishel, 169 N.Y. 381, 62 N.E. 425; Saracena v. Preisler, 180 App.Div. 348, 167 N.Y.S. 871; Brill v. Friedhoff, 192 App.Div. 802, 183 N.Y.S. 463; Grigsby v. Ruland, 210 App.Div. 640, 206 N.Y.S. 376. Tenants having vacated, the survival clauses in this lease permitted landlord to re-enter and re-rent--without terminating tenant's liability, albeit such liability would be for damages only. (Hermitage Co. v. Levine, supra; Hines v. Bisgeier, 244 App.Div. 354, 279 N.Y.S. 439; Lenco, Inc. v. Hirschfeld, 247 N.Y. 44, 159 N.E. 718; Kottler v. New York Bargain House, Inc., 242 N.Y. 28, 150 N.E. 591).

However, simultaneously with its re-entry, plaintiff advertised the apartment for rent at $170.00 per month and then at $165.00 per month, although tenants' lease provided for a rental of $150.00 per month. Plaintiff succeeded in re-renting it at $165.00 per month for a term extending beyond the expiration date of tenants' lease and seeks to recover $67.12, the cost of such advertising. The survival clause expressly permits re-renting for a longer or shorter term and the granting of free rent or concessions. Although not provided for in the survival clause, re-renting at a higher rent does not result in a surrender and acceptance. (Grigsby v. Ruland, supra; Sallah v. Myriad Inv. Corp., supra; Brill v. Friedhoff, supra; Hackett v. Richards, 13 N.Y. 138). However, this does not entitle plaintiff to recover advertising costs in the absence of an express provision therefor in the lease. No provision of the lease permits plaintiff acting as agent for tenant, or in its own right, to attempt to re-rent at a higher rent and to charge tenant for the expenses involved in such effort, whether successful or unsuccessful.

A landlord is under no obligation to mitigate damages. (Becar v. Flues, 64 N.Y. 518; Underhill v. Collins, 132 N.Y. 269, 30 N.E. 576). The parties may by contract provide for the consequences of the tenant's breach, lay down a rule to admeasure damages and agree when they are to be paid. (Hermitage Co. v. Levine, supra; McCready v. Lindenborn, 172 N.Y. 400, 65 N.E. 208). However, such provisions for survival of liability must be strictly construed and may not impose on a tenant an obligation he has not expressly assumed. A covenant to pay with no right to enjoy should be clear and unambiguous. (Michaels v. Fishel, supra; Hackett v. Richards, supra; Hermitage Co. v. Levine, supra). Plaintiff, conceding advertising expenses are not expressly made recoverable as damages, contends paragraphs 16 and 17 of the lease, listing other items of damage, are broad enough to include advertising expenses.

Paragraph 16 provides, among other things, that if the premises become vacant and the landlord gives the tenant three days' notice to end the term of the lease or if tenant defaults in the payment of rent or additional rent landlord may without notice re-enter and 'hold the premises as if the lease were not made,' and that in case of such default, re-entry, expiration and/or dispossess the 'rent shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration, together with such expenses as Landlord may incur for legal expenses, attorney's fees, brokerage and/or putting the demised premises in good order, or for preparing the same for rerental.' The listing of the types of expenses intended, following the words 'such expenses', effects a limitation not an extension of meaning, under the principle of ejusdem generis. (Circle Cab Corp. v. Rizzuto, 162 Misc. 547, 295 N.Y.S. 185; Stewart v. Barber, 182 Misc. 91, 43 N.Y.S.2d 560). Advertising expenses are not of the same general nature or class or included in 'legal expenses, attorney's fees, brokerage and/or putting the premises in good order, or for preparing the same for rerental.'

Paragraph 17 provides...