Opinion
May 6, 1971
Determination of Appellate Term, First Judicial Department, entered on September 28, 1970, affirming the judgment of the Civil Court entered February 2, 1970 granting plaintiff's motion for summary judgment, affirmed. Respondent shall recover of appellant $50 costs and disbursements of this appeal. Although the original relationship between the plaintiff-respondent and the defendant-appellant was that of landlord and tenant, by virtue of the assignment of the lease by the tenant, this relationship terminated, and the rights of the former tenant were only under a contract pursuant to which the former tenant agreed that the rent should be paid. Because there is pending another action for the rent during the remainder of the term, it should be emphasized that this determination is not on the merits and without prejudice to consideration by the trial court of the question of whether the landlord acted in good faith in failing to rerent the vacated premises.
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. ]