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Jefpaul Garage v. Presbyterian Hospital

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1983
92 A.D.2d 514 (N.Y. App. Div. 1983)

Summary

In Jefpaul Garage Corp. v Presbyterian Hosp. (92 A.D.2d 514 [a case in which there was indeed a general nonwaiver clause and the issue of nonwaiver was presented to this court in the briefs on appeal]), we held the determination of the Court of Appeals in Atkin's (supra) to be dispositive of issues such as those here presented.

Summary of this case from Monarch Info. Serv. v. 161 William Assoc

Opinion

February 17, 1983


Order, Supreme Court, New York County (Marks, J.), entered July 29, 1982, which denied plaintiff's motion for summary judgment, is unanimously reversed, on the law, without costs, and plaintiff's motion for summary judgment is granted to declare that plaintiff validly exercised its option for renewal of a commercial lease. By a lease executed in 1971, the assignor of the plaintiff tenant rented, for five years, commercial garage space, located at 507 West 166th Street, Manhattan, from defendant landlord. In 1973, the parties amended the lease so as: (1) to extend the term of the lease from 5 to 10 years, expiring on December 31, 1982; and (2) to give plaintiff the right to renew this lease, after December 31, 1982, for two more consecutive five-year terms. In 1981 plaintiff gave written notification to defendant that it was exercising this option, as to both additional periods. The defendant rejected plaintiff's exercise of the option because allegedly plaintiff had violated the provisions of the lease by paying rent late, subletting without defendant's permission, and using the garage for unauthorized purposes. Subsequent to the allegations of default, the defendant continued to accept rent from the plaintiff. The plaintiff commenced a declaratory judgment action. After issue was joined, plaintiff moved for summary judgment declaring that it had validly exercised its option to renew. Defendant opposed this motion. We find that Special Term erred in denying plaintiff's motion. The case of Atkin's Waste Materials v. May ( 34 N.Y.2d 422) is dispositive of the issue. In Atkin's (pp 426-427) a majority of the Court of Appeals wrote: "The exercise of an option by a tenant to extend a lease accomplishes not a new lease, but simply a prolongation of the original agreement, so that, in effect, the original lease became one for the entire term * * * Defendant continued to accept the rent * * * with knowledge of the defaults, if such there were. When rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by the landlord of the default * * * The acceptance of the rent is in effect an election by the landlord to continue the relationship of landlord and tenant" (emphasis added).

Concur — Ross, J.P., Asch, Bloom, Fein and Lynch, JJ.


Summaries of

Jefpaul Garage v. Presbyterian Hospital

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1983
92 A.D.2d 514 (N.Y. App. Div. 1983)

In Jefpaul Garage Corp. v Presbyterian Hosp. (92 A.D.2d 514 [a case in which there was indeed a general nonwaiver clause and the issue of nonwaiver was presented to this court in the briefs on appeal]), we held the determination of the Court of Appeals in Atkin's (supra) to be dispositive of issues such as those here presented.

Summary of this case from Monarch Info. Serv. v. 161 William Assoc
Case details for

Jefpaul Garage v. Presbyterian Hospital

Case Details

Full title:JEFPAUL GARAGE CORP., Appellant, v. PRESBYTERIAN HOSPITAL IN CITY OF NEW…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 17, 1983

Citations

92 A.D.2d 514 (N.Y. App. Div. 1983)

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