Practice point: The
duty to mitigate damages arising from a breach of contract is a duty
that arises from common law and, therefore, need not be expressly
bargained for in a contract to be enforceable. Assuming liability, the defendant may limit damages, if any, if the plaintiff failed to make reasonable exertions to minimize the injury.
Student note: On a summary judgment motion, when the movant fails to meet its prima facie burden, the motion will be denied without consideration of the sufficiency of the opposing papers.
Case: Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., NY Slip Op 06348 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Authorizations to release medical records, and notes of issue.
