NAB Construction Corp. v. Consolidated Edison Co. of New York, Inc.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about December 17, 1996, which denied defendant’s motion for summary judgment on the issue of damages under its counterclaim, and granted plaintiff leave to amend its pleading to include an affirmative defense to defendant’s counterclaim alleging defendant’s failure to mitigate its damages, unanimously affirmed, without costs.

Issues of fact exist as to whether defendant acted reasonably to mitigate its damages, including when defendant first became aware of plaintiffs nonperformance of the contract, and, once aware,…