C & A 483 Broadway, LLC v KLMNI, Inc.

[*1] C & A 483 Broadway, LLC v KLMNI, Inc. 2015 NY Slip Op 51689(U) Decided on November 24, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 25, 2015; it will not be published in the printed Official Reports.

Decided on November 24, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld. J.P., Shulman, Hunter, Jr., JJ.

570548/12
Calender No. 15-389/390


C & A 483 Broadway, LLC, Respondent,

against

KLMNI, Inc., Respondent-Tenant-Appellant.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), dated April 27, 2015, and (2) a final judgment (same court and Judge), entered May 21, 2015, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (James E. d'Auguste, J.), entered May 21, 2015, affirmed, with $25 costs. Appeal from order (James E. d'Auguste, J.), dated April 27, 2015, dismissed, without costs, as subsumed in the appeal from the final judgment.

We agree, essentially for reasons stated by James E. d'Auguste, J. at Civil Court, that landlord was entitled to enforce the conditional limitation for nonpayment of rent contained in the governing commercial lease agreement. The trial evidence demonstrated that tenant did not pay the July 2010 rent during the cure period and remained in default when the lease was terminated, after service of a notice of termination. The Court's finding that the sophisticated commercial tenant "did not justifiably rely on any word or deed by either [landlord or the prior owner] that mis[led] it into failing to timely pay its rent," is supported by a fair interpretation of the trial evidence. This finding rested in large measure upon credibility determinations that the court, sitting as factfinder, was uniquely situated to make, and we perceive no ground to disturb it (see 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 54 [1997]).

A fair interpretation of the evidence also supported the finding that the predecessor landlord "sent multiple letters" to tenant regarding the late payment and "did not waive legal remedies under the lease," and that any waiver that could have been asserted "was effectively withdrawn." Moreover, tenant's waiver argument, which is based upon the premise that landlord's acceptance of late rental payments over an extended period constituted a waiver of the right to insist upon timely payment, is barred by the clear and unambiguous nonwaiver provision of the lease, which provided: "[t]he receipt by Landlord of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach . . . [and] [n]o provision of this lease shall be deemed to have been waived by Landlord unless such waiver be in writing signed by the Landlord" (see Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442 [1984]; Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65 [2003], lv dismissed [*2]2 NY3d 794 [2004]). Indeed, acceptance of tenant's position would render the no waiver clause of the lease meaningless (see Elite Gold, Inc. v TT Jewelry Outlet Corp., 31 AD3d 338 [2006]).

We have considered and rejected tenant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 24, 2015