NYCTL 1996-1 Trust v. Malihan

Order, Supreme Court, New York County (Richard Braun, J.), entered on or about September 2, 1999, which, to the extent appealed and cross-appealed from, denied third-party defendant Continental Abstract Corporation’s motion for partial summary judgment to limit its damages to a maximum of $12,168.94, and denied defendant and third-party plaintiff Amie A. Malihan’s cross-motion for complete summary judgment as against Continental, unanimously modified, on the law, to grant Continental’s motion, and otherwise affirmed, without costs.

Although Continental, the title abstract company retained by Malihan at the closing on her purchase of a professional condominium, concedes some liability, in that it admittedly failed to remit to the taxing authorities sums due for real estate taxes, which led to an earlier order granting conditional partial summary judgment, nevertheless, Malihan failed to mitigate her damages, by failing to ascertain the reason for the tax delinquency notice in the amount of $12,168.94 in October 1993 and in defaulting on her in rem agreement with the Department of Finance to pay back that amount in installments. Accordingly, Continental’s liability is limited to a maximum of $12,168.94. Concur — Ellerin, J. P., Wallach, Lemer and Friedman, JJ.