| 49 Terrace Corp. v Richardson |
| 2012 NY Slip Op 51530(U) [36 Misc 3d 143(A)] |
| Decided on August 14, 2012 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Respondent Curtis Richardson appeals from that portion of an order of the Civil Court of the
City of New York, New York County (Cheryl J. Gonzales, J.), dated December 27, 2011, which
denied his motion to dismiss the holdover petition pursuant to CPLR 3211(a)(1) and (7).
Per Curiam.
Order (Cheryl J. Gonzales, J), dated December 27, 2011, affirmed, with $10 costs.
We sustain the denial of appellant's preanswer motion to dismiss the holdover petition, since appellant failed to conclusively establish that petitioner-landlord waived the right to pursue its eviction claim by its post-termination, pre-petition acceptance of a single "rent" payment. "Waiver is an intentional relinquishment of a known right and should not be lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1998]). Such an intent "must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act" (Navillus Tile v Turner Constr. Co., 2 AD3d 209, 211 [2003], quoting Orange Steel Erectors v Newburgh Steel Prods., 225 AD2d 1010, 1012 [1996]). At most, the record so far developed raises triable issues as to petitioner's intent and the circumstances surrounding its receipt, retention and negotiation of the money order in question.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 14, 2012