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NAB CONSTR. CORP. v. CONSOL. EDISON CO. OF NEW YORK, INC.

242 A.D.2d 480 (1997)

662 N.Y.S.2d 471

Nab Construction Corp., Respondent, v. Consolidated Edison Company of New York, Inc., Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

September 23, 1997

Issues of fact exist as to whether defendant acted reasonably to mitigate its damages, including when defendant first became aware of plaintiff's nonperformance of the contract, and, once aware, whether its method of mitigation was reasonable (see, Bernstein v Freudman, 180 A.D.2d 420). Defendant does not demonstrate or even allege prejudice or surprise by the requested amendment (CPLR 3025 [b]; Fahey v County of Ontario...

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