Mitchell & Titus Associates, Inc. v. Mesh Realty Corp.

Appellate Division of the Supreme Court of New York

Mitchell & Titus Associates, Inc. v. Mesh Realty Corp.

160 A.D.2d 465, 554 N.Y.S.2d 136, 1990 N.Y. App. Div. LEXIS 4290

Appellate Division of the Supreme Court of the State of New York·Decided April 17, 1990·Published·Cited by 13 cases

Opinion

— Order of the Supreme Court, New York County (Harold Baer, Jr., J.), entered on February 3,1989, which, inter alia, granted summary judgment to plaintiff for rent due on a commercial lease, is unanimously affirmed, without costs.

The alleged oral agreement to terminate the sublease is barred by the Statute of Frauds (General Obligations Law § 5-703 [2]), and the circumstances do not warrant an equitable estoppel. Defendants subtenants knew that they would be [466]*466liable on the sublease if the proposed new subtenant could not consummate a new sublease with plaintiff prime tenant, yet they moved out of the premises before a new sublease was even submitted to plaintiff. " '[T]he alleged reliance on the oral agreement is no more than the usual situation of parties who orally agree on a deal, intending that there shall be a written contract, and then at the point of signing, one of the parties backs out.’ ” (American Bartenders School v 105 Madison Co., 91 AD2d 901, 902, affd 59 NY2d 716, quoting Youz Films v Just Born, 69 AD2d 778; see also, Ginsberg v Fairfield-Noble Corp., 81 AD2d 318.) Further, in a commercial lease the lessor is not under a duty to mitigate damages (Syndicate Bldg. Corp. v Lorber, 128 AD2d 381). We have reviewed defendants’ remaining contentions and find them to be without merit. Concur—Kupferman, J. P., Ross, Rosenberger and Wallach, JJ.

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— Order of the Supreme Court, New York County (Harold Baer, Jr., J.), entered on February 3,1989, which, inter alia, granted summary judgment to plaintiff for rent due on a commercial lease, is unanimously affirmed, without costs.

The alleged oral agreement to terminate the sublease is barred by the Statute of Frauds (General Obligations Law § 5-703 [2]), and the circumstances do not warrant an equitable estoppel. Defendants subtenants knew that they would be [466]*466liable on the sublease if the proposed new subtenant could not consummate a new sublease with plaintiff prime tenant, yet they moved out of the premises before a new sublease was even submitted to plaintiff. " '[T]he alleged reliance on the oral agreement is no more than the usual situation of parties who orally agree on a deal, intending that there shall be a written contract, and then at the point of signing, one of the parties backs out.’ ” (American Bartenders School v 105 Madison Co., 91 AD2d 901, 902, affd 59 NY2d 716, quoting Youz Films v Just Born, 69 AD2d 778; see also, Ginsberg v Fairfield-Noble Corp., 81 AD2d 318.) Further, in a commercial lease the lessor is not under a duty to mitigate damages (Syndicate Bldg. Corp. v Lorber, 128 AD2d 381). We have reviewed defendants’ remaining contentions and find them to be without merit. Concur—Kupferman, J. P., Ross, Rosenberger and Wallach, JJ.

Mitchell & Titus Associates, Inc. v. Mesh Realty Corp., 160 A.D.2d 465, 554 N.Y.S.2d 136, 1990 N.Y. App. Div. LEXIS 4290 (N.Y. Ct. App. 1990).

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160 A.D.2d 465 (Mitchell & Titus Associates, Inc. v. Mesh Realty Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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