608 N.Y.S.2d 664 | N.Y. App. Div. | 1994
—Amended order, Supreme Court, New York County (Beverly S. Cohen, J.), entered on or about August 3, 1993, which, inter alia, granted plaintiff partial summary judgment and directed an assessment to determine the appropriate amounts due on its
We agree with the IAS Court that there exist no triable issues of fact as to liability for rent on the suites in question pursuant to the leases entered into and the month-to-month tenancies of the defendant tenants and undertenants. Accordingly, the IAS Court properly rejected the unsubstantiated defenses of surrender, constructive eviction and settlement, and granted partial summary judgment.
We further note that the landlord did not delay in seeking eviction of the undertenants who continued to occupy as a month-to-month tenant in violation of their written commitment to vacate and thus, there was no failure to take appropriate action by the landlord. In any event, there is no duty to mitigate damages in a commercial lease setting (Mitchell & Titus Assocs. v Mesh Realty Corp., 160 AD2d 465, 466). The tenants, however, have a valid claim against the undertenants to recover the damages suffered by virtue of the undertenants’ failure to vacate as promised. No defense to this claim has been shown and we award summary judgment on the cross-claim. Concur — Sullivan, J. P., Wallach, Asch and Nardelli, JJ.
