Opinion
November 8, 1976
Appeal from the Civil Court of the City of New York, Queens County, JOSEPH SLAVIN, J.
Katz, Wittenberg, Levine Silverman (Michael S. Harris of counsel), for appellant.
Harold I. Reichel for respondent.
The judgment of the court below (see 86 Misc.2d 607) should be affirmed with $10 costs.
Defendant had vacated her apartment on November 1, 1975, although her lease did not expire until June 30, 1977. Plaintiff having rerented this apartment on February 1, 1976, is entitled to prevail on its cause of action to recover rent for November, 1975 through January, 1976.
The court below, rejecting defendant's contention that plaintiff failed to mitigate damages, held that there is no such duty imposed upon a landlord. This holding is a reiteration of the long-standing rule in New York (Becar v Flues, 64 N.Y. 518; Sancourt Realty Corp. v Dowling, 220 App. Div. 660; Rottkamp v Eger, 74 Misc.2d 858; 2 Rasch, New York Landlord and Tenant [2d ed], § 875). It should be noted, however, that there seems to be a trend whereby the courts have been modernizing traditional concepts of landlord and tenant law (e.g., Tonetti v Penati, 48 A.D.2d 25, 30; 57 E. 54 Realty Corp. v Gay Nineties Realty Corp., 71 Misc.2d 353). Some courts have held that a landlord is obligated to attempt to relet premises where a tenant vacates before the expiration of the lease (Gracie Towne House v Weinstein, NYLJ, March 14, 1973, p 17, col 4; Parkwood Realty Co v Marcano, 77 Misc.2d 690; Sherman Taylor Corp. v Cohen, NYLJ, July 10, 1973, p 10, col 8; see, also, Howard Stores Corp. v Robison Rayon Co., 36 A.D.2d 911). We need not decide whether this rule should be adopted because it is apparent from the papers submitted on the motion for summary judgment that plaintiff diligently attempted to relet the premises.
Concur — SCHWARTZWALD, P.J., PINE and BUSCHMANN, JJ.