The following named papers numbered 1 to 3

submitted on this Motion

on June 6, 2012

papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents

Opposition to Motion2

Reply Papers to Motion3

Petitioner commenced this non-payment proceeding to recover $80,601.62 from respondent concerning the property located at 307-309 North Broadway, Jericho, New York. A review of the petition dated March 8, 2012 demonstrates that the $80,601.62 is comprised of base rent of $1,205.10 and additional rent of $79,396.72.

Respondent moves to dismiss the proceeding because "this court lacks subject matter jurisdiction over this proceeding because petitioner is not entitled to a judgment of possession in this proceeding."

Respondent argues that the Landlord/Tenant Part of the District Court is a court of limited jurisdiction and cannot determine this matter due to the fact that petitioner accepted rent from respondent which is summarized in the affidavit of Sohail Haider, President of respondent dated April 10, 2012 (paragraph 5): [*2]

The Respondent has paid, and the Petitioner has accepted thirteen rental payments since completion of the work, seven rental payments since the billing for the work, and three rental payments since the alleged demand.

Respondent contends that petitioner cannot seek a judgment of possession because no current rent is due. Petitioner accepted rent from August of 2011 to the present.

Respondent contends petitioner must commence a plenary action to recover the amounts due for "old, contested items of additional rent."

In summary, petitioner contends that collection of current rent deprives this court of jurisdiction to adjudicate this case concerning collection of "additional rent."

Respondent cites several cases involving the doctrine of laches or staleness which bars petitioner's claims. These cases include City of New York v. Betancourt, 79 Misc 2d 907, 362 NYS2d 728 (App Term 1st Dept 1974), Wasservogel v. Becker, 191 Misc 2d 599, 79 NYS2d 526 (Bronx Mun Ct 1948), and Weissler v. Webb, 124 NYS2d 530 (Queens Mun Ct 1953). These cases involve residential cases and not commercial which is the situation in the case at bar. The doctrine of laches is not applicable to commercial cases. See Diversified Bldg. Co. LLC v. Nader Enterprises, LLC, 30 Misc 3d 1222(A), 926 NYS2d 343, holding that laches is not a viable defense in a proceeding to recover back taxes from a commercial tenant. See also Landlord & Tenant Practice in New York, Finkelstein & Ferrara, Section 14:351.

Petitioner states that it purchased the shopping center in November 2009. The respondent paid the basic rent and additional rent pursuant to a triple net commercial lease from 2009 and on.

The dispute between the parties is summarized in paragraph 6 of the affidavit of Benny Giannone, a limited partner of petitioner, dated April 25, 2012:

The unpaid rent and additional rent in connection with (1) parking lot, sidewalk, and curb work; (2) an electrical upgrade to accommodate respondent's electrical usage needs; (3) roof repair regarding A/C balance; and (4) unpaid base rent, taxes, and other work and common area maintenance charges.

Petitioner contends in paragraphs 11 and 12 of Benny Giannone's affidavit, that petitioner continuously demanded payment of the additional rent:

Despite respondent's assertion that the construction work had been completed in December 2010, the work continued after that date. For example, on or about August 12, 2011, services for the new padmount transformer were completed. LIPA delayed completing some of the work on the electrical upgrade for 3 to 4 months due to Hurricane Irene in August 2011. Some steps were not even completed until in or about March 2012, such as LIPA installing new [*3]meters. The tenant was billed for the construction, electrical upgrade, and other work as well as the other charges in August 2011, because that is when petitioner had the true numbers for those expenses deemed additional rent under the lease.

From the time the construction work began through to when the costs were billed to the tenants in August 2011, when a formal rent demand was served in December 2011, and when a nonpayment proceeding commenced in March 2012, I have actively and continuous discussed, with respondent, its obligation to pay for these costs under the lease. In December 2011, I engaged the petitioner's attorney to collect the unpaid rent and additional rent via a rent demand. From December 2011 to March 2012, the attorneys attempted to resolve this additional rent issue. In March 2012, petitioner commenced a nonpayment proceeding.

This court has jurisdiction to determine this proceeding to collect additional rent under the Uniform District Court Act Section 204. See Rasch, New York Landlord and Tenant - Summary Proceedings, 4th Ed, Section 32:9.

This court must determine if petitioner waived its right to commence this summary proceeding. Respondent doesn't dispute that petitioner continuously attempted to collect the additional rent owed as explained above.

In Jefpaul Garage Corp. v. Presbyterian Hospital in City of New York, 61 NY2d 442, 474 NYS2d 458 (Ct of Appeals 1984), the Court made clear that waiver is a voluntary abandonment or relinquishment of a known right.

In 38-40 Brooklyn Holding LLC v. Pasta Italiana Inc., 26 Misc 3d 1226(A), 907 NYS2d 441, 2010 WL 653973 (Dist Ct, Nassau Cty 2010), this court declined to find waiver by the acceptance of a $1,000 check because there was no clear intent by petitioner to waive its rights.

Waiver is essentially a matter of intent, which "must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act." See Ess v. Vee Acoustical & Lathing Contr v. Prado (Prato) Verde, 268 AD2d 332, 702 NYS2d 38 (1st Dept 2000); Orange Steel Erecters (Erectors) v. Newburgh Steel Products, 225 AD2d 1010, 640 NYS2d 283 (3rd Dept 1996).

The petitioner's activities to collect the additional rent demonstrate no intent to abandon its rights by accepting the basic rent to which it is entitled under the terms of this lease. To hold otherwise would violate the principal of law set out by the Court of Appeals in Jefpaul, supra that waiver may not be inferred to "frustrate the reasonable expectations of the parties embodied in a lease. . . ".

In addition to the above, Section 8.6 of the lease entitled Entire Agreement contains a "no waiver clause" which states "no waiver of any provision of this lease shall be effective unless in writing, signed by the waiving party." [*4]

In PWV Acquisition, LLC v. Columbina Pescador, 12 Misc 3d 48, 820 NYS2d 374 (App Term, 2nd Dept 2006), the Court held that the landlord did not waive the lease provision requiring landlord's prior written consent to tenant's alterations where the lease required any waiver of a lease provision to be formalized by a written agreement between the parties.

In Dennis & Jimmy's Food Corp. v. Milton Company., 99 AD2d 477, 470 NYS2d 412 (2nd Dept 1984), the lease contained a "no-waiver" provision. The Court held that the landlord did not waive its objection to the tenant's placing four video games in the demised premises by its acceptance of rent for 3 months.

See also 74 NY Jur 2d Landlord and Tenant, Section 111, which explores the above doctrine of waiver.

The above facts and circumstances combined with the no waiver provision constitutes a proper basis for petitioner to commence a summary proceeding for the additional rent. There is no basis to find that petitioner waived its right to recover additional rent in a summary proceeding by its acceptance of basic rent. To hold otherwise would frustrate the reasonable expectations of the parties embodied in their lease. See Jefpaul, supra.

The respondent's motion to dismiss is denied in its entirety. This case is set down for conference July 24, 2012 at 9:30 a.m., with clients.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 28, 2012

SF/mp