Opinion
April 17, 1990
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
The alleged oral agreement to terminate the sublease is barred by the Statute of Frauds (General Obligations Law § 5703 [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 A.D.2d 901, 902, affd 59 N.Y.2d 716, quoting Youz Films v. Just Born, 69 A.D.2d 778; see also, Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318.) Further, in a commercial lease the lessor is not under a duty to mitigate damages (Syndicate Bldg. Corp. v Lorber, 128 A.D.2d 381). We have reviewed defendants' remaining contentions and find them to be without merit.
Concur — Kupferman, J.P., Ross, Rosenberger and Wallach, JJ.