Howard Stores Corp. v. Robison Rayon Co.

CourtNew York Supreme Court Appellate Division
Writing for the CourtPER CURIAM; All concur except NUNEZ
Citation36 A.D.2d 911,320 N.Y.S.2d 861
Decision Date06 May 1971
PartiesHOWARD STORES CORPORATION, Plaintiff-Respondent, v. ROBISON RAYON CO. Inc., Defendant-Appellant.

Page 861

320 N.Y.S.2d 861
36 A.D.2d 911
HOWARD STORES CORPORATION, Plaintiff-Respondent,
v.
ROBISON RAYON CO. Inc., Defendant-Appellant.
Supreme Court, Appellate Division, First Department.
May 6, 1971.

Page 862

M. London, New York City, for plaintiff-respondent.

J. Chase, New York City, for defendant-appellant.

Before STEVENS, P.J., and NUNEZ, KUPFERMAN, STEUER and EAGER, JJ.

PER CURIAM.

Determination of Appellate Term, First Judicial Department, entered on September 28, 1970, 315 N.Y.S.2d 720, affirming the judgment of the Civil Court entered February 2, 1970, 61 Misc.2d 939, 307 N.Y.S.2d 491, granting plaintiff's motion for summary judgment, affirmed. Respondent shall recover of appellant $50 costs and disbursements of this appeal.

Although the original relationship between the plaintiff-respondent and the defendant-appellant was that of landlord and tenant, by virtue of the assignment of the lease by the tenant, this relationship terminated, and the rights of the former tenant were only under a contract pursuant to which the former tenant agreed that the rent should be paid.

Because there is pending another action for the rent during the remainder of the term, it should be emphasized that this determination is not on the merits and without prejudice to consideration by the trial court of the question of whether the landlord acted in good faith in failing to rerent the vacated premises.

All concur except NUNEZ, J., who dissents in the following memorandum:

The determination should be reversed and summary judgment denied to the plaintiff. To the well-reasoned dissenting opinion of Mr. Justice Markowitz in the Appellate Term I would merely add that on this record defendant's attack on plaintiff's good faith is fully warranted. The conduct of the landlord in refusing possession of the premises to the defendant while demanding full payment of rent was, in my opinion, clearly arbitrary and unconscionable. If plaintiff is correct in asserting

Page 863

that defendant waived its right to re-entry by paragraph 18 of the lease, it should be barred from collecting damages for failure to affirmatively prove its own attempt to mitigate those damages. The facts raise a clear issue of good faith, i.e., plaintiff's efforts to mitigate damages, sufficient to defeat plaintiff's motion for summary judgment and requiring a trial.

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15 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • 29 June 1977
    ...171 N.W.2d 247 (1969); Lefrak v. Lambert, 89 Misc.2d 197, 390 N.Y.S.2d 959 (N.Y.Cty.Ct.1976); Howard Stores Corp. v. Rayon Co., Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861 (App.Div.1971); Ross v. Smigelski, 42 Wis.2d 185, 166 N.W.2d 243 (1969); with Chandler Leas. Div. v. Florida-Vanderbilt Dev. ......
  • Lefrak v. Lambert
    • United States
    • New York City Court
    • 3 December 1976
    ...Gracie Towne House v. Weinstein, N.Y.L.J.; 3/14/73, App.Term 1st Dept.; see also Howard Stores Corp. v. Robinson Rayon Co. Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861.) The greatest strength of the common law is its ability to adapt to changing conditions. It is a living, growing, changing thing ......
  • Rubin v. Dondysh
    • United States
    • New York City Court
    • 25 April 1990
    ...523 N.Y.S.2d 827; Syndicate Building Corp. v. Lorber, 128 A.D.2d 381, 512 N.Y.S.2d 674; Howard Stores Corp. v. Robison Rayon Co., Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861; Parkwood Realty Co. v. Marcano, supra, 77 Misc.2d at 692, 353 N.Y.S.2d 623). The hearsay letters from real estate brokers,......
  • Rubin v. Dondysh
    • United States
    • New York City Court
    • 19 December 1989
    ...disguised in terms of whether the landlord acted in good faith. Thus, as early as 1971, in Howard Stores Corp. v. Robison Rayon Co. Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861, involving a commercial lease, the Court, citing the existence of another action pending for unpaid rent during the remai......
  • Request a trial to view additional results
15 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • 29 June 1977
    ...171 N.W.2d 247 (1969); Lefrak v. Lambert, 89 Misc.2d 197, 390 N.Y.S.2d 959 (N.Y.Cty.Ct.1976); Howard Stores Corp. v. Rayon Co., Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861 (App.Div.1971); Ross v. Smigelski, 42 Wis.2d 185, 166 N.W.2d 243 (1969); with Chandler Leas. Div. v. Florida-Vanderbilt Dev. ......
  • Lefrak v. Lambert
    • United States
    • New York City Court
    • 3 December 1976
    ...Gracie Towne House v. Weinstein, N.Y.L.J.; 3/14/73, App.Term 1st Dept.; see also Howard Stores Corp. v. Robinson Rayon Co. Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861.) The greatest strength of the common law is its ability to adapt to changing conditions. It is a living, growing, changing thing ......
  • Rubin v. Dondysh
    • United States
    • New York City Court
    • 25 April 1990
    ...523 N.Y.S.2d 827; Syndicate Building Corp. v. Lorber, 128 A.D.2d 381, 512 N.Y.S.2d 674; Howard Stores Corp. v. Robison Rayon Co., Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861; Parkwood Realty Co. v. Marcano, supra, 77 Misc.2d at 692, 353 N.Y.S.2d 623). The hearsay letters from real estate brokers,......
  • Rubin v. Dondysh
    • United States
    • New York City Court
    • 19 December 1989
    ...disguised in terms of whether the landlord acted in good faith. Thus, as early as 1971, in Howard Stores Corp. v. Robison Rayon Co. Inc., 36 A.D.2d 911, 320 N.Y.S.2d 861, involving a commercial lease, the Court, citing the existence of another action pending for unpaid rent during the remai......
  • Request a trial to view additional results

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