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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1990
• Status: Published

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 liable 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.