Paragon Industries, Inc. v. Williams

• Decision Date: 04 August 1983
• Citation: 473 N.Y.S.2d 92,122 Misc.2d 628
• Parties: PARAGON INDUSTRIES, INC., Plaintiff-Appellant-Respondent, v. Samuel D. WILLIAMS, Defendant-Respondent-Appellant, and Myrtle Williams a/k/a Myrtle Sainten, Defendant.
• Court: New York Supreme Court — Appellate Term

Page 92

473 N.Y.S.2d 92

122 Misc.2d 628

PARAGON INDUSTRIES, INC., Plaintiff-Appellant-Respondent, v. Samuel D. WILLIAMS, Defendant-Respondent-Appellant and Myrtle Williams a/k/a Myrtle Sainten, Defendant.

Supreme Court, Appellate Term Second and Eleventh Judicial Districts.

Aug. 4, 1983.

David S. Friedberg, for plaintiff-appellant-respondent.

Before PINO, P.J., and BUSCHMANN and HIRSCH, JJ.

PER CURIAM.

Appeal by plaintiff from so much of a judgment as dismissed its first cause of action for rent. Cross-appeal by defendant from so much of the judgment as dismissed his counterclaim and granted judgment for plaintiff on its second cause of action in the amount of $454.37.

Judgment unanimously modified by vacating the dismissal of plaintiff's first cause of action and remanding the matter for a new trial. As so modified, judgment affirmed without costs.

In this action by a landlord for rents accruing after a tenant's abandonment of the premises, the issue is whether it was encumbent upon the landlord to prove, as part of its direct case, that it attempted to mitigate damages by reletting the premises. We hold that it was.

It was long the established rule in this state, as in many other jurisdictions, that a landlord was under no duty to mitigate damages by reletting the premises to a new tenant upon the original tenant's abandonment (see Becar v. Flues, 64 N.Y. 518; Centurian Dev. Ltd. v. Kenford Co., 60 A.D.2d 96, 400 N.Y.S.2d 263, 2 Rasch, New York Landlord and Tenant, § 875; Ann., Landlord's Duty, On Tenant's Failure To Occupy, Or Abandonment Of, Premises, To Mitigate Damages By Accepting Or Procuring Another Tenant, 21 A.L.R.3d 534). (The rationale for the rule was said to be that the tenant, by the contract of leasing, had purchased a vested interest in real estate, that the contract had been executed by the landlord and that the tenant's obligation to pay rent was thus absolute (see, e.g., Sancourt Realty Corp. v. Dowling, 220 App.Div. 660, 222 N.Y.S. 288; 2 Rasch New York Landlord and Tenant, § 875; Ann., supra, 21 A.L.R.3d at 539).

However, following the landmark case of Javins v. First Nat. Realty Corp. 428 F.2d 1071, cert. den. 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185, this view of residential leases began to change. Courts in this state began to acknowledge that a lease of residential premises establishes a contractual relationship with mutual obligations and that there are rules of law applicable to other agreements that should apply to leases (see Tonetti v. Penati, 48 A.D.2d 25, 29, 367 N.Y.S.2d 804; [holding that rental agreements, like other sales of goods and services, should carry with them a warranty of fitness for the purpose intended, or of habitability]; 57 E. 54 Realty Corp. v. Gay Nineties Realty Corp., 71 Misc.2d 353, 335 N.Y.S.2d 872; see also Covington v. McKeiver, 88 Misc.2d 1000, 390 N.Y.S.2d 502). Not long thereafter, some courts extended this reasoning to the issue of landlord's duty to mitigate, concluding that a landlord should indeed have such a duty (see, e.g., Jaysons Holding Co. v. Leviton, NYLJ, December 21, 1979 [App Term, 9th & 10th Jud Dists]; Gracie Towne House, Inc. v. Weinstein, NYLJ, March 14, 1973 [App Term, 1st Dept.]; Parkwood Realty Co. v. Marcano, 77 Misc.2d 690, 353 N.Y.S.2d 623).

While this...