HOLY PROPERTIES LIMITED, L.P., RESPONDENT, v. KENNETH COLE PRODUCTIONS, INC.,
APPELLANT.
87 N.Y.2d 130, 661 N.E.2d 694, 637 N.Y.S.2d 964
December 7, 1995
1 No. 262 (1995 NY Int. 280)
Decided December 7, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Bruce H. Wiener, for Appellant.
Jeffrey R. Metz, for Respondent.
Real Estate Board of New York, Inc., amicus curiae.
SIMONS, J.:
In 1985, defendant Kenneth Cole Productions, Inc. entered into a
written lease for premises in a commercial office building located at
29 West 57th Street in Manhattan. The term was to commence on January
1, 1985 and end on December 31, 1994. In December, 1991, following a
change of owners and an alleged deterioration in the level and quality
of building services, defendant vacated the premises. Shortly
thereafter, the new owner, plaintiff Holy Properties Limited L.P.,
commenced a summary eviction proceeding against defendant for the
non-payment of rent. It obtained a judgment and warrant of eviction on
May 19, 1992 and subsequently instituted this action seeking rent
arrears and damages. At trial defendant asserted, as an affirmative
defense, that plaintiff had failed to mitigate damages by deliberately
failing to show or offer the premises to prospective replacement
tenants. Supreme Court entered judgment for plaintiff, holding that
defendant had breached the lease without cause and that plaintiff had
no duty to mitigate damages. The Appellate Division affirmed.
The issue is whether, on these facts, the landlord had a duty to
mitigate its damages after the tenant's abandonment of the premises
and subsequent eviction.
The law imposes upon a party subjected to injury from breach of
contract, the duty of making reasonable exertions to minimize the
injury (Wilmot v State of New York, 32 NY2d 164, 168-169; Losei Realty
Corp. v New York, 254 NY 41, 47). Leases are not subject to this
general rule, however, for, unlike executory contracts, leases have
been historically recognized as a present transfer of an estate in
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Bruce H. Wiener, for Appellant.
In 1985, defendant Kenneth Cole Productions, Inc. entered into a written lease for premises
Shortly thereafter, the new owner, plaintiff Holy Properties Limited L.P., commenced a
At trial defendant asserted, as an affirmative defense, that plaintiff had failed to mitigate
Supreme Court entered judgment for plaintiff, holding that defendant had breached the lease
The issue is whether, on these facts, the landlord had a duty to mitigate its damages after
The law imposes upon a party subjected to injury from breach of contract, the duty of making
Leases are not subject to this general rule, however, for, unlike executory contracts, leases
Ltd. v Kenford Company, Inc., 60 AD2d 96).
Once the lease is executed, the lessee's obligation to pay rent is fixed according to its
Ltd. v Kenford Company, Inc., supra).
Defendant urges us to reject this settled law and adopt the contract rationale recognized by
v Lo Galbo, 68 NY2d 373, 381).
This is perhaps true in real property more than any other area of the law, where established
Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.
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