equitable relief would be available, the parties became equally responsible for the
stalemate (see Hixon, 130 AD3d at 426 ["misconduct" which precludes a finding
of a breach of warranty of habitability found to include a tenant's failure to comply with a
stipulation by tendering an escrow amount, thus delaying repairs for nine months],
citing RPL § 235-b[1]; see also Van Syckle v C.L. King & Assoc.,
Inc., 822 F Supp 98, 102 [NDNY 1993] ["A party cannot recover the part of their
loss caused by their own failure to take reasonable steps to avoid further harm once they
had reason to know of the wrongdoing"]; Korea Life Ins. Co., Ltd. v Morgan Guar.
Tr. Co. of New York, 99 CIV. 12175 (AKH), 2004 WL 1858314, at *8 [SDNY Aug.
20, 2004] [where it was "at least as reasonable" for breaching defendant to incur
expenses to reduce its damages, defendant could not impose exclusive mitigation burden
on the plaintiff]; see also In re Lori, 241 BR 353, 357 [*10][Bankr MD Pa 1999] [debtor's award for violation of an
automatic bankruptcy stay reduced for debtor's failure to mitigate his damages by
promptly seeking legal redress for the violation]).
Once it became clear (or should have become clear) to the Corporation that the
access required for repair was not forthcoming from Plaintiff, and once Judge Kotler
issued her order informing the parties that Civil Court could not grant injunctive relief,
the Corporation's failure to further pursue their legal remedies in the proper forum was as
unreasonable as Plaintiff's failure to affirmatively grant access to the Corporation to
make the necessary repairs. Accordingly, Plaintiff is entitled to a 50% abatement from
October of 2013 until Plaintiff granted access and repairs began in February of
2016.