AD2 SAYS: LANDLORDS NEED NOT MITIGATE

In Rios v. Carrillo, Maria Rios leased a residential apartment to Alfredo Carrillo for a period of two years. A year into that lease, Carrillo left the apartment, stopped paying rent, and claimed he did so with Rios' consent. Rios didn't agree and filed suit in 2003 seeking the monies due.

Since Rios hadn't demonstrated that she attempted to "mitigate" or reduce her damages by re-renting the space, advertising its availability and/or listing the apartment with real-estate brokers, the Queens County Supreme Court decided Rios wasn't entitled to the cash and dismissed her case.

On appeal, the Appellate Division, Second Department, reversed.

While Carrillo argued that a landlord should have a duty to take action, the AD2 found that "well-settled law in [New York] imposes no duty on a residential landlord to mitigate damages."

Relying on the Court of Appeals' decision in Holy Props. v. Cole Prods., 87 N.Y.2d 130, 637 N.Y.S.2d 964 (1995), the AD2 noted that unlike other contracts, "'leases have been historically recognized as a present transfer of an estate in real property,'" a sort of "hybrid" between a contract and a conveyance in land. Therefore, since landlords aren't required to re-rent or otherwise assist the tenant find a replacement during the lease term, Carrillo remained liable for all monies that accrued in his absence.

Only the Court of Appeals can mitigate that.