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LASALLE BANK v. NOMURA ASSET

47 A.D.3d 103 (2007)

846 N.Y.S.2d 95

LASALLE BANK NATIONAL ASSOCIATION, Formerly Known as LASALLE NATIONAL BANK, as Trustee for the Certificateholders of Asset Securitization Corporation Commercial Mortgages Pass-Through Certificates Series 1997-D5, Appellant, v NOMURA ASSET CAPITAL CORPORATION et al., Respondents.

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

November 13, 2007.

Attorney(s) appearing for the Case

Friedman Kaplan Seiler & Adelman LLP, New York City (Robert J. Lack, Jeffrey R. Wang and Laurence D. Borten of counsel), and Munsch Hardt Kopf & Harr, P.C., Dallas, Texas (David C. Mattka and Richard C. King, Jr., of the Texas bar, admitted pro hac vice, and Mishell B. Kneeland of counsel), for appellant.

Dreier LLP, New York City (Marc S. Dreier, Joel A. Chernov and Amianna Stovall of counsel), for respondents.

FRIEDMAN, MARLOW, SULLIVAN and McGUIRE, JJ., concur.

OPINION OF THE COURT

SAXE, J.P.

This appeal presents the issue of whether the common-law mitigation of damages rule justifies the complete preclusion of any award of damages to plaintiff for defendants' established breach of their contractual representations, on the ground that plaintiff failed to take available steps to avoid its damages. We conclude that the record fails to support a complete denial of any damages.

Plaintiff is the trustee for...

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