Rubin v. Dondysh
| Decision Date | 29 May 1991 |
| Citation | 153 Misc.2d 657,588 N.Y.S.2d 504 |
| Parties | Morris RUBIN, Plaintiff-Appellant, v. Leon M. DONDYSH, M.D., Defendant-Respondent. |
| Court | New York Supreme Court |
Horing & Welikson, Forest Hills, for plaintiff-appellant.
Field, Field & Field, Cedarhurst, for defendant-respondent.
Before KASSOFF, P.J., and PIZZUTO and SANTUCCI, JJ.
Appeals by plaintiff from an order of the Civil Court of the City of New York, County of Queens, 146 Misc.2d 37, 549 N.Y.S.2d 579 (Goldstein, J.) entered December 27, 1989 which denied his motion for summary judgment and an order of said court entered May 2, 1990, 147 Misc.2d 221, 555 N.Y.S.2d 1004, which denied his motion for renewal.
Order entered December 27, 1989 unanimously reversed without costs, plaintiff's motion for summary judgment granted, defendant's counterclaim dismissed and matter remanded to the court below for a hearing on the issue of the amount of reasonable attorney's fees incurred by plaintiff.
Appeal from order entered May 2, 1990 dismissed as academic.
Plaintiff, the landlord of the subject commercial premises, rented same to defendant as a professional office. Defendant vacated the premises prior to the expiration of the lease and plaintiff commenced the instant action to recover the sum of $18,200 representing rent accruing after defendant had vacated the premises. Plaintiff also sought to recover reasonable attorney's fees. Defendant interposed an answer wherein he denied any liability and counterclaimed for the sum of $60,000 representing the cost of renovations that he performed to the subject premises in reliance upon plaintiff's statement that the premises were suitable for use as a professional office. The plaintiff moved for summary judgment and the lower court denied the motion on the ground that issues of fact exist as to whether plaintiff had attempted to rerent the premises and thereby mitigate damages, whether the defendant had been induced to enter into the lease by reason of plaintiff's fraudulent representations to the effect that the premises could legally be used as a professional office, whether the defendant was compelled to vacate the premises by reason of plaintiff's failure to obtain a proper certificate of occupancy permitting the premises to be used as a professional office and whether the plaintiff had accepted the defendant's surrender of the premises so as to relieve the defendant of the obligation to...
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In re Durso Supermarkets, Inc.
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In re Andover Togs, Inc.
...them accrue as the property lay vacant. See Rubin v. Dondysh, 146 Misc.2d 37, 549 N.Y.S.2d 579, 580-81 (Civ.Ct.1989), rev'd, 153 Misc.2d 657, 588 N.Y.S.2d 504 (1991). Observing that more than a dozen other states had rejected the traditional rule in favor of a duty to mitigate, see 21 A.L.R......
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Chapel Hill Cinemas, Inc. v. Robbins
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In re Ames Dept. Stores, Inc.
...a mitigation obligation, has been reversed. Rubin v. Dondysh, 146 Misc.2d 37, 549 N.Y.S.2d 579 (N.Y.Civ.Ct.1989), rev'd, 153 Misc.2d 657, 588 N.Y.S.2d 504 (N.Y.Sup.1991). Recent Appellate Division cases have confirmed the traditional rule that commercial lessors have no duty to mitigate upo......