& Kruman, P.C., Malverne, NY (Henry E. Kruman of
counsel), for appellant.
Bressler, Amery & Ross, P.C., New York, NY (Jed L. Marcus
and Nicholas Bamman of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS,
SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the plaintiff appeals from an order of the Supreme
Court, Nassau County (Bucaria, J.), entered October 16, 2014,
which granted the defendant's motion for summary judgment
dismissing the cause of action alleging breach of contract.
that the order is reversed, on the law, with costs, and the
defendant's motion for summary judgment dismissing the
cause of action alleging breach of contract is denied.
1975, the plaintiff, as landlord, and the defendant, as
tenant, entered into a commercial lease for premises located
in Rockville Centre. The plaintiff contends that, pursuant to
the written lease entered into by the parties in 1975 (and
extended seven times), the defendant had an obligation to
keep and maintain the premises in good order, condition, and
repair, and that the defendant breached that obligation.
defendant moved for summary judgment dismissing the cause of
action alleging breach of contract, contending that the
plaintiff waived its right to assert a cause of action
alleging breach of the lease because the plaintiff was
alerted to the ongoing water damage at the property beginning
in 1977 and had nevertheless accepted rent and extended the
lease seven times with full knowledge of the facts it alleged
constituted the breach. The plaintiff opposed the motion,
contending that the defendant's waiver argument should be
rejected because the lease itself contained a nonwaiver
provision, thereby precluding the defendant from arguing that
the plaintiff waived its rights. In the order appealed from,
the Supreme Court granted the defendant's motion, finding
that the plaintiff waived its claim against the defendant to
recover damages for the property damage. The plaintiff
appeals, and we reverse.
waiver is the voluntary abandonment or relinquishment of a
known right" (Jefpaul Garage Corp. v Presbyterian
Hosp. in City of N.Y., 61 N.Y.2d 442, 446). A known
right may not be waived except when there is an intention to
do so (see id. at 446). "While waiver may be
inferred from the acceptance of rent in some circumstances,
it may not be inferred, and certainly not as a matter of law,
to frustrate the reasonable expectations of the parties
embodied in a lease when they have expressly agreed
otherwise" (id.). "Since the very essence
of a waiver is the intentional relinquishment of a known
right, a waiver cannot be created via negligence, oversight,
or thoughtlessness" (Matter of Georgetown Unsold
Shares, LLC v Ledet, 130 A.D.3d 99, 105; see Plato
Gen. Constr. Corp./EMCO Tech Constr. Corp., JV, LLC v
Dormitory Auth. of State of N.Y., 89 A.D.3d 819, 825;
Golfo v Kycia Assoc., Inc., 45 A.D.3d 531, 532;
Peck v Peck, 232 A.D.2d 540).
as the party seeking summary judgment, the defendant had the
burden of establishing its prima facie entitlement to
judgment as a matter of law (see Alvarez v Prospect
Hosp., 68 N.Y.2d 320, 324; Zuckerman v City of New
York, 49 N.Y.2d 557, 562). By submitting a copy of the
1975 lease and the seven extensions thereof in support of its
motion, the defendant failed to establish, prima facie, that
the plaintiff waived its right to assert a breach of contract
cause of action for the property damage to the premises. The
presence of a nonwaiver provision in the lease, which stated
in relevant part that "[t]he failure of the Landlord to
insist upon a strict performance of any of the terms,
conditions and covenants herein, shall not be deemed a waiver
of any rights or remedies that the Landlord may have, and
shall not be deemed a waiver of any subsequent breach or
default in the terms, conditions and covenants herein
contained, " itself raised a triable issue of fact as to
whether the plaintiff waived its right to assert its breach
of contract cause of action (see Renali Realty Group 3 v
Robbins MBW Corp., 259 A.D.2d 682, 683; see also 80
Varick St. Group, L.P. v MacPherson, 102 A.D.3d 405;
Ring v Printmaking Workshop, Inc., 70 A.D.3d 480;
Ahmed v C.D. Kobsons, Inc., 67 A.D.3d 467;
International Plaza Assoc., L.P. v Lacher, 63 A.D.3d
527; Kunze v Arito, Inc., 48 A.D.3d 272).
the Supreme Court should have denied the defendant's
motion for summary judgment dismissing the cause ...