Opinion
5765 Index 651303/10
02-20-2018
FREDERICK GOLDMAN, INC., Plaintiff–Appellant, v. ABNER PROPERTIES COMPANY, Defendant–Respondent.
Pasich LLP, New York (Jeffrey L. Schulman of counsel), for appellant. Belkin Burden Wenig & Goldman, LLP, New York (Lewis A. Lindenberg of counsel), for respondent.
Pasich LLP, New York (Jeffrey L. Schulman of counsel), for appellant.
Belkin Burden Wenig & Goldman, LLP, New York (Lewis A. Lindenberg of counsel), for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Andrias, Gesmer, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 13, 2015, which, inter alia, granted the motion of defendant landlord for partial summary judgment against plaintiff commercial tenant on its counterclaim for nonpayment of additional rent, unanimously affirmed, with costs.Commercial tenant's previous communications of disputing the subject charges by means other than by certified mail, as required by the lease, was insufficient evidence of an "intentional relinquishment [by landlord] of a known right with both knowledge of its existence and an intention to relinquish it" ( Silverstein Props. v. Paine, Webber, Jackson & Curtis, 104 A.D.2d 769, 771, 480 N.Y.S.2d 724 [1st Dept. 1984], affd 65 N.Y.2d 785, 493 N.Y.S.2d 110, 482 N.E.2d 906 [1985] [internal quotation marks omitted] ). The vast majority of correspondence concerned the charges at issue, and the willingness of a party to discuss a dispute will not effectuate waiver ( id. ). Commercial tenant's arguments concerning substantial compliance are unpersuasive, particularly since it admittedly did not pay the disputed sums as required under the lease as a condition precedent to objecting to the amounts.
We have considered commercial tenant's remaining contentions and find them unavailing.