36 A.D.2d 911 | N.Y. App. Div. | 1971
Concur — Stevens, P. J., Kupferman, Steuer and Eager, JJ.; Nunez, J., dissents in the following memorandum: The determination should be reversed and summary judgment denied to the plaintiff. To the well-reasoned dissenting opinion of Mr. Justice Markowitz in the Appellate Term I would merely add that on this record defendant’s attack on plaintiff’s good faith is fully warranted. The conduct of the landlord in refusing possession of the premises to the defendant while demanding full payment of rent was, in my opinion, clearly arbitrary and unconscionable. If plaintiff is correct in asserting that defendant waived its right to re-entry by paragraph 18 of the lease, it should be barred from collecting damages for failure to affirmatively prove its own attempt to mitigate those damages. The facts raise a clear issue of/ good faith, i.e,, plaintiff’s efforts to mitigate damages, sufficient to defeat plaintiff’s motion for summary judgment and requiring a trial. [64 Misc 2d 913.]
