Opinion
570651/04.
Decided March 21, 2006.
Tenant appeals from a final judgment of the Civil Court, New York County (Jose A. Padilla, Jr., J.), entered December 11, 2003, after a nonjury trial, awarding landlord possession and a money judgment in the sum of $154,845 in a nonpayment summary proceeding.
Final judgment (Jose A. Padilla, Jr., J.) affirmed, with $25 costs.
PRESENT: Suarez, P.J., Davis, Gangel-Jacob, JJ
The trial court correctly determined that landlord's agreement to accept monthly rent in a lesser amount than that specified in the governing lease agreement did not operate as a waiver of its right to collect the balance of rent due in this commercial nonpayment proceeding. Since the parties' lease provides that any modification of its terms must be in writing and signed by the party to be charged (paragraph 20), tenant's claim of an enforceable downward modification of the rent reserved in the lease, based on a purported financial hardship, was properly rejected ( see General Obligations Law § 15-301; Joseph P. Day Realty Corp. v. Jeffrey Lawrence Assocs., 270 AD2d 140; 99 Realty Co. v. Eikenberry, 242 AD2d 215). Nor has tenant demonstrated the validity of the alleged oral modification by adducing proof of conduct by the parties unequivocally referable to the claimed modification ( see Egan v. O'Brien, 291 AD2d 244; see also Rose v. Spa Realty Assocs., 42 NY2d 338, 343-344).
Tenant's affirmative defense of accord and satisfaction was properly dismissed, since tenant failed to show that its partial payments of rent constituted full settlement of a disputed, unliquidated claim (see Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 NY2d 590, 596). Tenant's unpleaded defense of laches, belatedly raised after the close of the evidence, was also without merit, there being no proof that any delay by landlord in the commencement of this proceeding resulted in actual prejudice to the tenant or caused tenant to change its position ( see Dwyer v. Mazzola, 171 AD2d 726, 727).
This constitutes the decision and order of the court.