Summary
enforcing a "no waiver" clause in a lease where landlord did not provide written waiver of a default
Summary of this case from Wythe Berry Fee Owner LLC v. Wythe Berry LLC (In re Wythe Berry Fee Owner LLC)Opinion
2002-1721 S C.
Decided October 15, 2003.
Appeal by tenant from a final judgment of the District Court, Suffolk County (E. Sperzel, J.), entered April 16, 2002, awarding landlord possession together with use and occupancy, and attorneys' fees, for a total of $68,070.
Final judgment unanimously affirmed without costs. It was undisputed in this holdover summary proceeding that tenant defaulted on the lease in failing to obtain required building permits, and that landlord never provided any written waiver of this default. The court properly found upon the credible evidence before it that landlord did not waive the default by any course of action. A clear and unambiguous no-waiver clause in a commercial lease, such as the clause at issue, will be enforced ( JefPaul Garage Corp. v. Presbyterian Hosp. in New York, 61 NY2d 442, 460). A waiver of such a clause by conduct is essentially a matter of intention that must be proved ( id., at 459), and tenant failed to make out such proof.
PRESENT: DOYLE, P.J., RUDOLPH and SKELOS, JJ.
The record reflects that landlord at all times made it clear that compliance with permit requirements was expected, and that although landlord was willing to lend assistance, it was not going to waive this requirement ( cf. Waldbaum, Inc. v. Fifth Ave. of Long Is. Realty Assoc., 85 NY2d 600, 606-607). The evidence, including that received from tenant's witnesses, indicated that landlord consistently refused to acquiesce or participate in tenant's defaulting conduct. Thus, the court's finding that no waiver occurred is amply supported by the record ( see generally Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499).
Tenant's remaining contentions have been considered and are without merit.