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Vicky Incorporated, Respondent v. Ghada Haddad Doing Business As Broadway Deli and As G H Broadway Deli

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


August 16, 2011

VICKY INCORPORATED, RESPONDENT,
v.
GHADA HADDAD DOING BUSINESS AS BROADWAY DELI AND AS G H BROADWAY DELI, INC., APPELLANT.

Appeal from an order of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered March 26, 2010.

Vicky Inc. v Haddad

Decided on August 16, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

The order denied tenant's motion for, among other things, summary judgment dismissing the petition, granted landlord's cross motion to dismiss tenant's affirmative defenses, and awarded landlord a final judgment of possession.

ORDERED that the order is modified by providing that landlord's cross motion to dismiss tenant's affirmative defenses is denied and by striking the provision awarding landlord a final judgment of possession; as so modified, the order is affirmed, without costs, and the matter is remitted to the City Court for all further proceedings.

In July 2006, tenant entered into a written 10-year lease agreement for the subject commercial premises with landlord's predecessor in interest. In July 2007, landlord acquired the building through a foreclosure proceeding and began accepting rent from tenant. In June 2009, landlord sent tenant a notice of its intention to terminate the lease, alleging several defaults. In November 2009, landlord commenced this holdover proceeding, alleging that three of the alleged defaults had not yet been cured: the obtaining of a permanent certificate of occupancy, the placement of air conditioning units without the written consent of landlord, and the placement of a refrigerator compressor without landlord's consent in an area not leased to tenant.

In her answer and in a motion for, among other things, summary judgment, tenant asserted several affirmative defenses, including that any objection to the placement of the air conditioning units or refrigerator compressor had been waived because those units had been in place for many years before tenant had entered into possession of the premises, with the full knowledge of the prior and current landlord, both of whom had accepted rent despite knowledge of the alleged defaults. Tenant further asserted that, through the doctrine of attornment, the prior lease terms, including the placement of the air conditioning units and refrigerator compressor, carried forward to the new landlord. In addition, tenant maintained that she had attempted to cure and/or commenced curing all of the alleged defaults within the 10-day cure period.

Landlord cross-moved to dismiss tenant's affirmative defenses, contending that a non-waiver clause in the lease precluded any finding of waiver and that tenant had not properly commenced curing the defaults during the requisite time period. Without affording tenant a trial, the City Court denied tenant's motion, granted landlord's cross motion, and awarded landlord a final judgment of possession.

"Where triable issues of fact are raised, they shall be tried" (RPAPL 745; see CPLR 410; Development Strategies Co., LLC v Astoria Equities, Inc., 30 Misc 3d 136[A], 2011 NY Slip Op 50183[U] [App Term, 9th & 10th Jud Dists 2011]; Concord Mgt. Ltd. v Kaplan, 2002 NY Slip Op 50599[U] [App Term, 9th & 10th Jud Dists 2002]). In this case, there are questions of fact as to waiver, the intention of the parties and of the prior landlord, and whether tenant attempted to cure and/or commenced curing during the requisite period.

"Waiver is the voluntary abandonment or relinquishment of a known right" (Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69 [2003]). "It is essentially a matter of intent which must be proved" (Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442, 446 [1984]). Where a landlord, or a landlord's predecessor, is actively involved in the defaults, such behavior can override a non-waiver clause (Simon & Son Upholstery v 601 W. Assoc., 268 AD2d 359 [2000]). In this case, tenant's allegations are sufficient to raise questions of fact as to the intention of the parties and of the prior landlord regarding the placement of the equipment. Tenant has alleged that the prior landlord delivered the premises to her in its current condition, including the placement of the air conditioning units and refrigerator compressor. Thus, there is a triable issue as to whether there are "sufficient indicia that the reasonable expectations" of tenant and the prior landlord were to allow the current placement of the equipment (Simon & Son Upholstery, 268 AD2d at 360).

Furthermore, tenant has also sufficiently raised a triable issue as to whether the various alleged defects involved "substantial work that obviously could not be completed in 10 days," and that she had met her obligation to comply with the notice to cure by attempting to cure and/or commencing to cure within the 10-day cure period (Witkoff v Shopwell, Inc., 112 AD2d 295, 296 [1985]).

Accordingly, the order is modified by providing that landlord's cross motion to dismiss tenant's affirmative defenses is denied and by striking the provision awarding landlord a final judgment of possession. The matter is remitted to the City Court for all further proceedings.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: August 16, 2011

20110816

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