Howard Stores Corp. v. Robison Rayon Co.

Appellate Division of the Supreme Court of New York

Howard Stores Corp. v. Robison Rayon Co.

36 A.D.2d 911, 320 N.Y.S.2d 861, 1971 N.Y. App. Div. LEXIS 4142

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1971

StatusPublished

Cited by10 cases

This text of 36 A.D.2d 911 (Howard Stores Corp. v. Robison Rayon Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howard Stores Corp. v. Robison Rayon Co., 36 A.D.2d 911, 320 N.Y.S.2d 861, 1971 N.Y. App. Div. LEXIS 4142 (N.Y. Ct. App. 1971).

Pincite

Opinion

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.]

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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.]

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Bluebook (online)

36 A.D.2d 911, 320 N.Y.S.2d 861, 1971 N.Y. App. Div. LEXIS 4142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-stores-corp-v-robison-rayon-co-nyappdiv-1971.

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