Opinion
2002-10718.
Decided March 1, 2004.
In an action, inter alia, to recover damages for breach of a commercial lease and for a declaration that the lease expired, the plaintiff Thruway Center Associates, L.P. appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated October 17, 2002, which, after a hearing, denied its motion for a judgment declaring that the lease with the defendant AM Associates expired.
Joseph J. Haspel, Goshen, N.Y., for appellant.
Benjamin Ostrer Associates, P.C., Chester, N.Y. (Moriah Eskow-Niblack and Benjamin Ostrer of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that the lease between the plaintiff Thruway Center Associates, L.P., and the defendant AM Associates expired.
Pursuant to a commercial lease between the plaintiff landlord, Thruway Center Associates, L.P. (hereinafter the landlord), and the defendant tenant, AM Associates (hereinafter the tenant), the tenant had the option, conditioned upon not being in default, to renew the term of the lease by written notification. The lease also provided that none of its provisions could be deemed waived unless by express waiver, in writing, signed by the landlord.
The tenant failed to exercise the renewal option by timely notification to the landlord ( see J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 N.Y.2d 392, 397; Matter of Temple of Emanu-El of Boro Park v. Attorney-General of State of N.Y., 240 A.D.2d 752; Dan's Supreme Supermarkets v. Redmont Realty Co., 216 A.D.2d 512). In any event, exercise of the renewal option was precluded by the tenant's admitted failure to pay the monthly rent for several years preceding the end of the term.
A letter from the landlord's attorney proposing a schedule of rent repayment which, by its terms, extended into the renewal period, did not constitute a waiver of the requirement that the tenant exercise the option to renew by timely written notice ( see Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442; Bono v. Cucinella, 298 A.D.2d 483; Paulsen Real Estate Corp. v. Grammick, 244 A.D.2d 340; Siegel v. Kentucky Fried Chicken of Long Is., 108 A.D.2d 218, affd 67 N.Y.2d 792).
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and RIVERA, JJ., concur.