Sunoce Properties, Inc. v. Bally Total Fitness of Greater New York, Inc.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered October 16, 2014, which granted the defendant’s motion for summary judgment dismissing the cause of action alleging breach of contract.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the cause of action alleging breach of contract is denied.

In 1975, the plaintiff, as landlord, and the defendant, as tenant, entered into a commercial lease for premises located in

The defendant moved for summary judgment dismissing the cause of action alleging breach of contract, contending that the plaintiff waived its right to assert a cause of action alleging breach of the lease because the plaintiff was alerted to the ongoing water damage at the property beginning in 1977 and had nevertheless accepted rent and extended the lease seven times with full knowledge of the facts it alleged constituted the breach. The plaintiff opposed the motion, contending that the defendant’s waiver argument should be rejected because the lease itself contained a nonwaiver provision, thereby precluding the defendant from arguing that the plaintiff waived its rights. In the order appealed from, the Supreme Court granted the defendant’s motion, finding that the plaintiff waived its claim against the defendant to recover damages for the property damage. The plaintiff appeals, and we reverse.

“A waiver is the voluntary abandonment or relinquishment of a known right” (Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442 , 446 [1984]). A known right may not be waived except when there is an intention to do so (see id. at 446 ). “While waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise” (id.). “Since the very essence of a waiver is the intentional relinquishment of a known right, a waiver cannot be created via negligence, oversight, or thoughtlessness” (Ma tter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99 , 105 [2015]; see Plato Gen. Constr. Corp./EMCO Tech Constr. Corp., JV, LLC v Dormitory Auth. of State of N.Y., 89 AD3d 819 , 825 [2011]; Golfo v Kycia Assoc., Inc., 45 AD3d 531 , 532 [2007]; Peck v Peck, 232 AD2d 540 [1996]).

Here, as the party seeking summary judgment, the defendant had the burden of establishing its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]; Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). By submitting a copy of the 1975 lease and the seven extensions thereof in support of its motion, the defendant failed to establish, prima facie, that the plaintiff waived its right to assert a breach of contract cause of action for the property damage to the premises. The presence of a

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the cause of action alleging breach of contract.

Rivera, J.R, Dillon, Chambers and Hinds-Radix, JJ., concur.