Lefrak v. Lambert

• Decision Date: 03 December 1976
• Parties: Sam LEFRAK d/b/a Mandalay Leasing Co., Plaintiff, v. Kenneth O. LAMBERT and Verna Lambert, Defendants.
• Court: New York City Court

Page 959

390 N.Y.S.2d 959

89 Misc.2d 197

Sam LEFRAK d/b/a Mandalay Leasing Co., Plaintiff, v. Kenneth O. LAMBERT and Verna Lambert, Defendants.

Civil Court of the City of New York, Queens County.

Dec. 3, 1976.

Kenneth Lambert, pro se.

Epstein & Cresci, P.C., New York City (S. Jack Brant, New York City, of counsel), for plaintiff.

DECISION

HERBERT A. POSNER, Judge.

In the Book of Leviticus (Ch. 19:15) it is written, 'Ye shall do no unrighteousness in judgment: Thou shalt not respect the person of the poor, nor favour the person of the mighty: but in righteousness shalt thou judge they neighbour.'

If ever there was a classic case to test the mettle of a judge's ability to live up to this time-honored precept, this is the case. We were faced with the vexing problem of balancing the common law with common justice.

This is an action for money damages in the sum of $5,462, allegedly resulting from the breach of a lease for an apartment in a multi-family dwelling. The plaintiff is well known and respected in this city as one of the largest (if not The largest) individual owner of residential apartment houses. The apartment in question is one of five thousand in the privately owned development known as 'Lefrak City'. The defendants are a young couple who were represented by the husband (Kenneth), appearing pro se; and responding to the complaint with an ingenuous answer. The answer, hand-written by Kenneth Lambert, stated: 'My wife and I, left the apartment due to the new birth of my son and the loss of my wife's income. At the time we were two months behind in rent and had received a 30 day eviction notice. I wrote a letter to the mandalay leasing company explaining our problem. Our two month security covered the two months we lived there without paying. I will pay any Fair amount decided upon' (emphasis supplied). Besides not being represented by counsel, the defendant sat mute during the entire trial and offered no evidence whatsoever in his own behalf. Since the trial, the court has received a memorandum of law from the plaintiff. The memo bears out the fact that the common law for centuries is that a landlord is under no obligation to mitigate damages stemming from the tenant's breach of the lease agreement. The defendant has not submitted any memorandum of law.

Since the defendant offered no defense to the issue of liability, the sole issue at the trial was the question of 'damages.' While the plaintiff's attorney claimed before the trial began that his client had no obligation to mitigate damages, he nevertheless presented one witness and several documents in an attempt to prove that an effort was made to re-rent the apartment. The witness was an assistant manager in Lefrak City, who, while not directly involved in the rental office, exercised certain administrative duties in connection with the rental of apartments. He introduced into evidence the lease (a printed standard form) which showed a rental term of three years from 9/15/73 to 9/30/76 with rent payable in 'equal monthly installments' of $258 per month. The witness testified that defendants moved out of the apartment on 11/20/74 owing rent for October and November. The landlord had at that time a security deposit of $502. The apartment was vacant for seventeen (17) months and not re-rented until 5/1/76. During this period the defendants paid $45 in September, 1975. The plaintiff claimed (in his complaint) unpaid rent of $4552 and $910 for legal fees, pursuant to a clause in the lease providing for 20% Liquidated damages--resulting in a total claim of $5462. However, the court's computation of 19 months rent at $258 per month less the security deposit of $502 and the $45 payment made in September, 1975 came to $4355. There was no testimony of what the difference of $197 consisted of and the attorney's testimony of the value of his services (in justification of the 20% Damage clause) only persuaded the court to the amount of $300--resulting in a total of $4655.

As to the efforts made by the landlord to re-rent the apartment, the witness testified that the apartment went on an 'availability' list 11/25/74 and remained on that list until rented. He testified that the rental office consisted of five full time employees who interview prospective tenants and show them apartments. In addition, advertisements are run daily in the major newspapers to attract tenants. Invoices totaling more than $124,000 were introduced into evidence. However, he could produce no witness nor records to show that an effort was made to rent the defendants' apartment, except for two documents (introduced into evidence) indicating that an application was received for this apartment on 7/19/76 but rejected as a poor credit risk. The witness, himself, indicated no personal knowledge of the procedure and practices of the rental office, other than the fact that he approved credit for rental applications.

Based upon all the evidence presented by the plaintiff, the court came to the conclusion that he had failed to establish that he acted in good faith to rent the defendants' apartment. This presupposes that by operation of law, he had a duty to mitigate his damages. The landlord had no duty to rent this apartment before he rented similar apartments that had become vacant prior to this one. However, he introduced not one shred of evidence as to what his rental policies were at the time. For all the court knows, he may have had a policy to first rent out apartments that became vacant upon expiration of lease, and to leave breach of lease apartments vacant. It is not for the court to speculate, but the burden of the plaintiff to prove he has a prima facie case. This is especially so when the facts are known only to him or employees under his control. The plaintiff's only witness testified that there were five employees working in the rental office. Not one of these employees was produced as a witness, though they obviously must know what the rental procedures were during the period in question. The law of evidence is well settled that failure to produce a witness under your control leads to an inference that the testimony of the uncalled person(s) would not support the plaintiff's version of the facts. (Noce v. Kaufman, 2 N.Y.2d 347, 161 N.Y.S.2d 1, 141 N.E.2d 529; Schwier v. N.Y.C. & H.R.R. Co., 90 N.Y. 558; Bleecker v. Johnston, 69 N.Y. 309.)

The plaintiff's evidence that he spent over $124,000 in advertising, during this period, and that he had five people working full time in the rental office, only proves that he generated a lot of prospective tenants For Lefrak City, Not for this specific apartment. This court is in no position to speculate why it took the plaintiff seventeen months to re-rent this apartment with all that advertising and all those employees working in the rental office. This court finds, that as a matter of law, seventeen months is an unreasonable period of time for a middle-class apartment in a middle-class neighborhood to remain vacant, absent proof by the landlord that a good faith effort was made to re-rent.

Disposing of the factual determination was simple compared to the disposition of the legal question. As stated, heretofore plaintiff's attorney claimed, before the trial even began, that a landlord is under no obligation to mitigate damages stemming from the tenants' breach of the lease agreement. As his authority, he cites Rasch (New York Landlord and Tenant, 2nd Ed., Sec. 875) as follows:

'Therefore, it is well established that the usual obligation in the law of contracts to reduce damages has no application to a contract of leasing, and a landlord is under no obligation or duty to his tenant to relet, or attempt to relet, abandoned premises in order to minimize his damages.

A lease grants in praesenti a term which the tenant thereof agrees to pay for. It is like the sale of specific personal property. Title has passed, and all that is left is liability for the purchase money.

The tenant's absolute liability, therefore, is unaffected by a landlord's refusal to relet the premises.'

To support this ancient rule of law (dating back to feudal England), he cites a 1964 lower court case (Fermaglich v. Warshawiak, Rockland Cty. Ct., 42 Misc.2d 1077, 249 N.Y.S.2d 963), a 1927 Appellate Division 1st Department case (Sancourt Realty Corp. v. Dowling, 220 App.Div. 660, 222 N.Y.S. 288), and a 1876 Court of Appeals case (Becar v. Flues, 64 N.Y. 518). However, let it not be said that a valid rule of law does not survive time and changing circumstances. The paramount question is whether this rule of law deserves to be validated or summarily abandoned. Law is justice and justice must be the foundation of the law. The Hon. Judge Irwin Shapiro in a recent article entitled, 'The Law: Yesterday, Today, Tomorrow' (NYLJ 10/18/76 P. 1) wrote:

'The law not only helps formulate and strengthen the beneficial institutions of our way of life but also, like those institutions, grows and alters to meet the needs of our society for a system of justice that accords with the changing patterns of morality and custom which our improved technology continually brings about in our life'.

There is no longer good reason--if there ever was--why leases should be governed by rules different from those applying to contracts in general (Parkwood Realty Co. v. Marcano, 77 Misc.2d 690, 353 N.Y.S.2d 623, 1974; Sherman Taylor Corp. v. Cohen, N.Y.L.J., 7/10/73, Civ.Ct.N.Y.Co.; 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 and nowhere is that growth and that change more evident than in the law of landlord-tenant. Courts across the nation are rejecting the conveyance theory of landlord-tenant law in favor of simple contract law (Gallet, 'The...