Summary
holding that clause in residential lease stating that no waiver would occur if landlord accepted rent with knowledge of breach was inapplicable to "a claim of waiver by open possession"
Summary of this case from CUMBERLAND FARMS, INC. v. RIAN REALTY, LTD.Opinion
October 7, 1975
Appeal from the Civil Court of the City of New York, Housing Part, New York County, RILEY, H.O.
Frederick L. Sohn for appellant.
Seymour Forman for respondents.
Appellant, as landlord, received rent of respondent with the knowledge that the latter, permitting the apartment to be co-occupied by another, was in breach of a covenant of the lease. The lease contained a clause stating that the landlord could not be deemed to have waived any rights regarding a breach of the lease by merely receiving rent with knowledge of the breach.
A "no waiver" clause of this character does not apply to a claim of waiver by open possession. Despite such a provision in a lease, the acceptance of rent with knowledge of a subletting constitutes a waiver of the right to terminate the tenancy for breach of the condition against such subletting (Woollard v Schaffer Stores Co., 272 N.Y. 304; Condit v Manischewitz, 220 App. Div. 366; Borsella v Torres, NYLJ, April 22, 1974, p 2, col 1; 215 West 34th St. v Feldman, 105 N.Y.S.2d 209; Rasch, New York Landlord Tenant [2d ed], § 738).
Final judgment, entered June 10, 1975 (RILEY, H.O.), affirmed with $25 costs.
Concur — FINE, P.J., FRANK and HUGHES, JJ.