Order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about May 5, 2009, which, inter alia, denied plaintiff's motion for a preliminary injunction, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Saxe, Renwick, DeGrasse, Richter, JJ.
Plaintiff failed to demonstrate that he would probably succeed on the merits and that the equities weighed in his favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 ). The subject lease afforded plaintiff a renewal option, provided that he was not delinquent in the payment of rent and was not in material default under any other provision of the lease (see Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442, 448 ). Plaintiff was not only continuously late with the payment of rent but was also delinquent in the payment of water charges, sign fees and sanitation charges, thereby materially defaulting under other provisions of the lease.
The "no waiver" clause of the lease, which provides, in pertinent part, that defendant's acceptance of rent shall not be deemed a waiver of any breach by plaintiff, vitiates plaintiff's argument that defendant must renew the lease based on an established course of dealing. Nor, contrary to his contention, does the lease require defendant to serve a notice to cure a rent delinquency or other material default that would preclude renewal.
Plaintiff's remaining arguments are unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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