Rubin v. Dondysh

• Decision Date: 19 December 1989
• Citation: 146 Misc.2d 37,549 N.Y.S.2d 579
• Parties: Morris RUBIN, Plaintiff, v. Leon DONDYSH, M.D., Defendant.
• Court: New York City Court

Page 579

549 N.Y.S.2d 579

146 Misc.2d 37

Morris RUBIN, Plaintiff, v. Leon DONDYSH, M.D., Defendant.

Civil Court of the City of New York,

Queens County, Special Term,

Part I.

Dec. 19, 1989.

Horing & Welikson (Niles C. Welikson, of counsel), Forest Hills, for plaintiff.

Field, Field & Field (Carl M. Field, of counsel), Cedarhurst, for defendant.

DAVID GOLDSTEIN, Judge.

This is a motion by plaintiff for summary judgment, pursuant to CPLR 3212, in this action to recover $18,200 rent for the two year period, up until July 1989, after defendant vacated the premises. At issue is whether a commercial landlord should have a duty to mitigate its loss, or whether he may leave the premises vacant and proceed against the former tenant for accrued rent.

FACTS

Plaintiff is the owner and lessor of 110-20 73rd Road, Forest Hills, New York. On July 21, 1983, the parties entered into a lease, by which Apartment 2-J was rented to defendant for use as a professional medical office, for a two year term, commencing August 1, 1983. The lease also afforded to the tenant options to renew, the first August 1, 1985 through July 31, 1987, and the second August 1, 1987 through July 31, 1989. The original term carried a monthly rental of $900 and the renewal terms, $1,100 and $1,300, respectively.

Defendant remained throughout the original term and exercised an option to renew for an additional two year period. On February 25, 1987, plaintiff wrote to advise Dr This action was commenced in August 1989, to recover $18,200 rent due for the period from June 1988 through July 1989, after defendant vacated the premises. The answer, in addition to a general denial, interposed a counterclaim to recover $60,000, which had been expended by defendant to convert the premises into a professional office. The responsive pleading alleged that relocation of the medical practice was rendered necessary when defendant learned that plaintiff did not have a certificate of occupancy and that the apartment was not zoned for use as a professional office.

                Dondysh that the lease would be expiring July 31, 1987 and would not be renewed.   Defendant replied on March 10, 1987:  "This is a mistake.   My real contract with yu [sic] is up to July 31, 1989.  * * *   This office can be vacated only in 1989."   This obviously referred to the option afforded to defendant in terms of renewal.   Subsequently, on May 9, 1988, during the second option period, defendant advised plaintiff that his office would be relocated "in June/May" and requested a return of his security deposit.   Plaintiff responded on May 11, 1988, that he would hold defendant responsible under the lease for the entire renewal period, until July 31, 1989
                

In opposition to this motion, defendant claims that he was fraudulently induced to enter into the lease by plaintiff's representations that the building and the apartment had the necessary zoning and permits to be used as a medical office, which it did not have. This, according to defendant, compelled him to relocate his practice. He also claims that he vacated the apartment in June 1988, advising plaintiff as to the reason and surrendered the apartment and the keys to the landlord, who accepted the surrender.

Plainly, these are factual matters which must await the trial and cannot be finally resolved upon motion for summary judgment. If the absence of zoning or permits prevented the use of the premises for the express purpose stated in the lease, this could afford a defense on the merits, notwithstanding that defendant occupied the space for a long period prior thereto. Nor may the Court determine, on the conflicting affidavits offered on this record, whether there was a surrender of the space and an acceptance by the landlord, sufficient to release the tenant from further responsibility. This is an issue which must await the trier of the facts and is inappropriate for disposition upon motion for summary judgment.

As has been repeatedly held, the function of the court upon motion for summary judgment is issue-finding, not issue-determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387; Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d 322). The remedy is a drastic one and should not be granted where there is any doubt as to the existence of a triable issue (Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259 N.Y.S.2d 1003) or where the issue is even arguable (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 N.E. 275), since it serves to deprive a party of his day in court. Relief should be granted only where no genuine, triable issue of fact exists (see, Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382).

DUTY TO MITIGATE

In my view, there is a further factual issue here which must await trial, namely, whether plaintiff, as a commercial landlord, attempted to mitigate its damages by seeking a new tenant after defendant vacated the space. The actions taken by the landlord, in terms of a good faith effort to rerent the vacated premises, involve factual issues to be determined at trial.

It has been the established law in this State that a landlord was under no duty to mitigate damages by attempting to relet the premises upon the abandonment of the space by the original tenant ( Becar v. Flues, 64 N.Y. 518; Sancourt Realty Corp. v. Dowling, 220 App.Div. 660, 222 N.Y.S. 288; Centurian Development v. Kenford Co., 60 A.D.2d 96, 400 N.Y.S.2d 263, lv. to app. dsmd. 45 N.Y.2d 772, 408 N.Y.S.2d 507, 380 N.E.2d 333; see generally, Ann. 21 ALR3d 534, 535-555). The rule, applicable to both residential and commercial tenancies, had its origin in common law principles, which, in recognition of property rules from feudal times, viewed a lease as a conveyance of an estate in land for a particular period, i.e., a transfer of a property interest in the owner's estate for a stated term, with an independent obligation to pay rent as the purchase price (Becar v. Flues, supra; Sancourt Realty Corp. v. Dowling, supra ). As a result, at common law, a tenant who vacated was considered to have abandoned his estate, not the landlord's, thus negating any duty on the part of the landlord to mitigate the loss.

The more recent cases to have considered the issue have taken into account that a lease, especially residential, is more than a mere conveyance of a vested real estate interest, and amounts to a contractual relationship with mutual obligations (Paragon Industries v. Williams, 122 Misc.2d 628, 629, 473 N.Y.S.2d 92; Forty Exchange Co. v. Cohen, 125 Misc.2d 475, 486-487, 479 N.Y.S.2d 628; Parkwood Realty Co. v. Marcano, 77 Misc.2d 690, 692, 353 N.Y.S.2d 623). One of these obligations, incident to any contractual dealing, is the obligation imposed upon a nondefaulting party to mitigate any loss following a breach of the contract.

Thus, in Parkwood Realty Co. v. Marcano, supra, Judge Kassal [now Associate Justice, Appellate Division, First Department], struck new ground in holding that a residential landlord had a duty to mitigate its damages, recognizing that "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." (77 Misc.2d at 691, 353 N.Y.S.2d 623). In rejecting the traditional rule which permitted a landlord to sit idly by while damages accumulated, this Court held that, by imposing a duty to mitigate, "the tenant will only be liable for such items of loss as the landlord could not have avoided by reasonable effort, without undue risk, expense or humiliation." (supra at 693, 353 N.Y.S.2d 623). In so doing, it applied general contract principles to require the nondefaulting party to make reasonable effort to reduce or extinguish the injury, observing (supra at 692, 353 N.Y.S.2d 623):

This issue should be met head-on by removing the long-established and deeply encrusted veneer from the real estate lease contract and showing it for what it is--a contract like any other contract.

Similarly, in Kershner v. Rubin, N.Y.L.J., May 4, 1983, p. 11 col. 1, the Civil Court, New York City, followed the progressive approach in Parkwood Realty, supra, and held that a residential landlord was obliged to attempt to rerent the apartment after the tenant had abandoned the space during the term of the lease, observing in part:

In recent years the courts have applied the law of contracts to residential and commercial leases in recognition of the fact that a modern lease is in reality a contract, encompassing mutual obligations and promises--services for money (rent)--the same as other agreements. (emphasis added).

In 437 Madison Avenue Associates v. A.T. Kearney, Inc., 120 Misc.2d 944, 466 N.Y.S.2d 931, involving a commercial tenancy, the court imposed upon the landlord a duty to mitigate, relying upon Kershner v. Rubin, supra, although the latter related to a tenant's abandonment of residential space.

During the period following the determination in Parkwood Realty, supra, the Appellate Term, Second Department, recognized the growing trend by which courts have sought to modernize traditional concepts of landlord-tenant law in terms of obligating a landlord to attempt to relet the premises after the tenant has vacated and before the expiration of the lease (see, Lefrak v. Mandalay Leasing Co., 93 Misc.2d 632, 403 N.Y.S.2d 397; Birchwood Associates v. Stern, 88 Misc.2d 937, 390 N.Y.S.2d 505). In both Lefrak and Birchwood, dealing with residential leases, the Court found it unnecessary to pass upon the mitigation issue since the proof at trial established that the landlord did make reasonable and diligent effort to rerent the premises.

In 1983, in Paragon Industries v. Williams, supra, also a residential case, the Appellate Term, Second Department, confronted the question directly and held (supra 122 Misc.2d at 628, 473 N.Y.S.2d 92):

In this action by a landlord for rents accruing after a tenant's abandonment of the premises, the...