Landlord appeals from an order of the Civil Court of the City of New York, New York County, dated June 19, 2000 (Julia I. Rodriguez, J.) granting a motion by tenant to dismiss the petition in a nonprimary residence holdover proceeding.

PER CURIAM:

Order dated June 19, 1999 (Julia I. Rodriguez, J.)
reversed, with $10 costs, motion denied, and petition reinstated.

"A waiver is the voluntary abandonment of a known right." (Jefpaul Garage Corp. v Presbyterian Hosp., 61 NY2d 442, 446). It is essentially a matter of intent, which "must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act" (Ess & [*2]Vee Acoustical & Lathing Contr. v Prato Verde, 268 AD2d 332, quoting Orange Steel Erecters v Newburgh Steel Products, 225 AD2d 1010, 1012). The tenant herein failed to establish as a matter of law that landlord unmistakably manifested an intent to relinquish its right to pursue the within nonprimary residence claim. It may be, as tenant alleges, that prior to the December 29, 1999 lease termination date specified in the underlying nonrenewal notice, tenant tendered and landlord accepted two checks, dated December 5, 1999 and December 7, 1999, respectively, ostensibly representing payment of "rent" covering December 1999 and January 2000. These allegations raise but do not resolve factual issues as to landlord's intent and the circumstances of the tenant's rapid-fire tender of the payments in question (see, Gottlieb v Scaringi, NYLJ, July 8, 1999, at 26, col 6 [App Term, 1st Dept]; compare, Shared Equities Co. v Roselle, NYLJ, April 2, 2001, at 28, col 4 [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: July 13, 2001