under no duty to mitigate damages where the terms of the lease do not indicate otherwise" (id. p.
114)—see also Maria Gordon v Eshaghoff, 2009 NY Slip Op 1945.
The lease at paragraphs 21 Default and 23 Abandonment reflects this remedy approved by
the Court of Appeals in Holy Props. v Cole Products (supra ) and Rios v Carrillo
(supra ) allowing the landlord at his election to claim the "full remainder of the lease term rent"
due from the date of early termination and/or abandonment by the tenant until the lease's
termination date.
However, in addition to this remedy available to the landlord when a tenant leaves a
leasehold prior to the end of the lease in this lease contract drafted by the defendant, he also
provides for the forfeiture of the $850 security deposit on top of the right to collect all rent due
for the balance of the lease's term until the termination date under the agreement.
In Hovorka this Court stated:
Is forfeiture of security deposit a liquidated damage?
In Rasch's Landlord and Tenant, 4th Ed., edited by Hon. Robert Dolan, 1998, Chapter 13
deals with "Deposit to secure performance of lease."
In his commentary Judge Dolan states that "[A] deposit of money...to secure...performance
of the conditions and covenants of the lease on the tenant's part to be performed may constitute a
penalty...sometimes called a security; or the deposit may constitute liquidated damages [and] [i]t
is important to ascertain the nature of the deposit" (id. 572, Vol.1).
He observes that if the "deposit is determined to be liquidated damages for a stipulated
breach...then, upon the occurrence of such breach, the deposit is forfeited...as the full measure of
the tenant's liability for such breach" (id); and "...any further claims of the landlord for damages