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New York Landlords' Duty To Mitigate Damages

Posted by consigliere on December 04, 2001 at 11:36:54:

In New York state, commercial landlords don't have a duty to mitigate damages if a tenant vacates its space before the end of a lease.

For residential landlords, the case law is not as clear. There are conflicting decisions by the appellate term courts covering New York City, and there are no rulings by the appellate division courts which would settle the conflict.

For Manhattan and the Bronx, a 1997 Appellate Term, First Department decision, Whitehouse Estates, Inc. v. Post, 173 Misc. 2d 558, 662 N.Y.S.2d 982 (A.T. 1st Dep't, 1997), held that there is no duty to mitigate damages for a residential tenancy.

There don't appear to be any other appellate court decisions that have followed that ruling. In fact, there is appellate term authority in the Second Department (Brooklyn, Queens, and Staten Island), such as Paragon Industries Inc. v. Williams, 122 Misc. 2d 628, 473 N.Y.S.2d 92 (A.T. 2nd and 11th Districts, 1983), which expressly held that a residential landlord has a duty to mitigate damages.

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