Syndicate Bldg. Corp. v. Lorber
| Decision Date | 03 March 1987 |
| Citation | 128 A.D.2d 381,512 N.Y.S.2d 674 |
| Parties | The SYNDICATE BUILDING CORP., Plaintiff-Appellant, v. Fred LORBER, Defendant-Respondent, and William Blitz, etc., Defendants. |
| Court | New York Supreme Court — Appellate Division |
D.A. Tane, New York City, for plaintiff-appellant.
J. Satta, New York City, for defendants.
Before KUPFERMAN, J.P., and SULLIVAN, ROSS, MILONAS and ROSENBERGER, JJ.
Judgment, Supreme Court, New York County (Irving Kirchenbaum, J.), entered January 9, 1986, after a trial to determine damages, which limited plaintiff-appellant's award of damages to four months' rent or approximately $2,500, reversed, on the law and the facts, and the matter is remanded for a new trial limited to the issues of whether plaintiff-appellant acted in good faith, and whether there are mitigating circumstances, without costs.
Defendant-respondent Fred Lorber and defendant William Blitz, as co-partners doing business as Blitz & Lorber Reporting Company, occupied space in the premises located at 13-21 Park Row in Manhattan under a lease due to expire on August 31, 1981. Lorber and Blitz signed the lease individually, as well as jointly and severally as co-partners in their court reporting business. In August 1978, they had a parting of the ways and, on consent of plaintiff-appellant-landlord, partitioned the premises. Lorber and Blitz agreed to apportion responsibility for the rent. For six months Lorber apparently tendered his proportionate share of the rent to plaintiff-landlord which, after the first month, plaintiff refused to accept. Lorber apparently vacated the premises in July 1979.
In July 1982, plaintiff commenced this action, by service of a summons and amended verified complaint, to recover approximately $35,000 in damages, representing rent due from August 1, 1978 through August 31, 1981, when the lease expired. Plaintiff named as defendants: Lorber, Blitz and Blitz Lorber Reporting Company. Lorber answered the plaintiff's amended complaint, asserting the affirmative defense of payment, and cross-claiming against Blitz. Plaintiff inexplicably moved for summary judgment only against Lorber, and not against the co-defendants Blitz and Blitz-Lorber Reporting Company.
Special Term let the affirmative defense stand, but granted the motion for summary judgment on the issue of liability. The court directed a trial on the issues of damages and reasonable attorney's fees. The trial was held on July 25 and 26, 1984, and resulted in the judgment appealed from.
We conclude that the trial court erred in relying upon plaintiff's failure to mitigate damages. Although courts in this State have recently imposed the duty to mitigate damages upon residential landlords (Paragon Industries v. Williams, 122 Misc.2d 628, 473 N.Y.S.2d 92 ...
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