Holy Properties Ltd., L.P. v. Kenneth Cole Productions, Inc.

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered January 3, 1994, which, after a non-jury trial, entered judgment in favor of plaintiff and against defendant in the amount of $718,841.51, unanimously affirmed, with costs. A commercial landlord is under no duty to mitigate damages when a tenant unjustifiably abandons the leased premises prior to the expiration of the lease term (see, Becar v Flues, 64 NY 18; Syndicate Bldg. Corp. v Lorber, 128 AD2d 381, 381-382). Moreover, in this case paragraph 18 of the lease 395 between the parties expressly provides that under the circumstances here present the tenant shall remain liable for any deficiency in the amount of the rent due for the balance of the lease term and the landlord’s failure to re-let shall not release or affect the tenant’s liability for such damages. While defendant claims "constructive eviction” due to the alleged deteriorating conditions of the subject premises, there is no proof in the record to demonstrate that said conditions were substantial or amounted to a material deprivation of defendant’s beneficial use and enjoyment of the premises (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83). We also find that the damages awarded by the IAS Court are supported by the evidence. Concur—Ellerin, J. P., Kupferman, Asch, Nardelli and Tom, JJ.