[*1]
| Park Lake Residences, LP v Lassic |
| 2007 NY Slip Op 52323(U) [17 Misc 3d 1137(A)] |
| Decided on December 7, 2007 |
| Nassau Dist Ct |
| Fairgrieve, J. |
| 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Nassau Dist Ct
Park Lake Residences,
LP, Petitioner
against
April Lassic, Respondent
|
SP 2882/07
REPRESENTATION:
Warren S. Dink, Esq., The Scher Law Firm, LLP, Attorneys for Petitioner, One Old
Country Road, Suite 365, Carle Place, New York 11514, 516-746-5040; Michael Wigutow, of
Counsel to Jeffrey A. Seigel, Esq., Nassau/Suffolk Law Services Committee, Inc., Attorneys for
Respondent, One Helen Keller Way, Hempstead, New York 11550, 516-292-8100.
Scott Fairgrieve, J.
DECISION AFTER TRIAL
This
holdover proceeding was brought by petitioner, Park Lake Residences, LP to evict respondent
April Lassic, a tenant residing at petitioner's federally subsidized housing complex since
February 1982. It is undisputed that respondent is in possession of two dogs in contravention of a
lease agreement signed on October 20, 2005. The petitioner alleges the existence of dogs on the
premises constitutes a substantial breach of respondent's obligations under section 13(d) of the
lease agreement, stating in pertinent part, "the tenant agrees not to: (d) have pets or animals of
any kind in the unit without the prior written consent of the Landlord, but the Landlord will allow
the tenant to keep an animal needed as a reasonable accommodation to the tenant's disability ".
Petitioner purchased the Park Lake Apartment Complex in January 2006. Upon coming into
possession, petitioner proceeded to evict respondent. Respondent's waiver defense asserts that
petitioner's predecessor (hereinafter predecessor) failed to bring a timely eviction proceeding and
such delay by predecessor is binding upon petitioner.
As a threshold question, the court must first determine whether the predecessor's
failure to bring a timely eviction proceeding for breach of a substantial obligation of the lease
agreement resulted in a waiver of the right to seek an eviction. Petitioner asserts the substantial
obligation respondent violated was possession of dogs in the subject premises without written
permission [*2]Secondly, if the predecessor is deemed to have
waived the right to bring an eviction proceeding based on said violation, does such waiver apply
to petitioner who took possession thereafter?
"When rent is accepted with knowledge of particular conduct which is claimed to be
default, the acceptance of such rent constitutes a waiver by the landlord of the default" Atkins
Waste Materials, Inc. v. May, 34 NY2d 422, 427, 358 NYS2d 129 (1974). Waiver is defined
as "the voluntary and intentional relinquishment of a known right and may be accomplished by
express agreement or by such conduct or failure to act as to evince an intent not to claim the
purported advantage" Nassau Trust Company v. Montrose Concrete Products Corp., 56 NY2d
175, 451 NYS2d 663 (1982) See also Steven Dice v. Inwood Hills Condominium, 237 AD2d
403, 655 NYS2d 562 (2nd Dept. 1997). The petitioner and predecessor were on notice of the
presence of the dogs in respondent's apartment since at least 2000. In a memorandum dated
October 12, 2000, site manager Hardy requested that respondent arrange an appointment to
discuss the presence of the dogs on the premises. With full knowledge of the presence of
respondent's violative dogs, predecessor entered into at least four lease renewals. Additionally,
the petitioner and its predecessor continued to accept rent from the time of notice in October
2000 to the present from the respondent. Neither petitioner nor its predecessor ever rejected the
HUD subsidy tendered on behalf of respondent Lassic.
The presence of the dog(s) must be so open, and notorious and visible as to support
an inference that the landlord must or should have known of it Seward Park Hous. Corp v
Cohen, 287 AD2d 157, 164 (2001). The respondent had resided at the subject premises with
the dogs for over eight years and maintained the dogs in an open and notorious manner. The dogs
were walked on the premises daily by respondent and her children. Petitioner and predecessor
knew or should have known of the existence of the dogs on the premises in contravention of the
lease agreement. It was incumbent upon predecessor to take timely action to either begin eviction
proceedings or inform respondent that she must remove the dogs from the premises, neither of
which occurred for more than eight years.
In the present case, predecessor was in fact on notice of the existence of a defaulting
condition and such notice was sufficient to bind the petitioner. "It is well-recognized in this state
that the transferee of real property takes the premises subject to the conditions as to tenancy,
including any waiver of rights his predecessor has established if the transferee has notice of the
existence of the leasehold" Bank of New York, Albany v. Hirschfeld 37 NY2d 501, 374
NYS2d 100, 336 NE2d 710 (1975), 33 N.Y.Jur., Landlord and Tenant s74. See Radcliffe
Associates v. Greenstein, 274 A.D. 277, 82 NYS2d 680 (1st Dept. 1948). Upon purchasing
Park Lake Residences, petitioner took the premises subject to the rights of existing tenants at the
time of conveyance. Respondent Lassic resided at the apartment complex at the time of
conveyance from predecessor to the current landlord/petitioner. Respondent's payment of her
portion of the subsidized rent as well as the Department of Housing and Urban Development
(hereinafter HUD) supplemental rent payments put petitioner on notice of her presence in the
apartment. Her presence in the apartment provided constructive notice to the petitioner of her
leasehold and those rights connected therewith.
[*3]
"Petitioner is bound by the actions of its
predecessors in interest and purchased the premises subject to existing tenancies " see also,
Bank of New York, Albany v. Hirschfeld 37 NY2d 501, 374 NYS2d 100, 336 NE2d 710
(1975), 33 N.Y.Jur., Landlord and Tenant s74. The predecessor failed to exercise the right to
evict respondent for violation of a substantial obligation of the lease agreement, specifically
presence of the dogs in contravention of paragraph 13(d) of the lease agreement. Such failure
resulted in a waiver of petitioner's right to exercise his option under paragraph 23(c)(1) to
terminate the lease for "material non-compliance" with a substantial obligation of the lease
agreement.
The petitioner asserts as a property receiving supplemental HUD funding it is not
permitted to make any changes to the terms and conditions of the respondent's written lease
agreement without first obtaining HUD approval. Neither petitioner nor respondent submitted
any evidence of HUD approval to change the terms and conditions of the lease. Absent such
approval, petitioner asserts that their inability to change the lease agreement prohibits respondent
from asserting a waiver defense. This argument is misplaced. The requirement of HUD
authorization is a limitation imposed upon petitioner and predecessor. Petitioner, as a condition
of receiving government funds, must comply with HUD regulations as outlined in the HUD
manual. The inability of petitioner to alter or change the provisions of the lease in any way has no
bearing upon the assertion of a waiver defense. Here, petitioner is not changing or altering the
terms of the lease. It is predecessor's failure to timely act to remedy the substantial violation
thereby enforcing the terms of the lease that has resulted in a waiver.
Furthermore, the court rejects respondent's claim of retaliatory eviction.
CONCLUSION
The respondent
may maintain the dogs at the subject premises. The actions (or lack thereof) of petitioner's
predecessor constitutes a waiver of any contractual rights to prevent respondent from maintaining
the dogs. The petition is dismissed.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated:December 7, 2007
CC:The Scher Law Firm, LLP
Nassau/Suffolk Law Services Committee, Inc.
SF/mp