Did Landlord's Acceptance of Rent Before Starting Court Case Waive Its Right to Proceed?

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Tenant asked the court to dismiss the case without trial because landlord accepted and retained two rent payments for the period after tenancy termination and prior to commencement of the proceeding. The court ruled for tenant and dismissed the case. Landlord appealed, and the case was reopened. A waiver is the voluntary abandonment of a known right and is essentially a matter of intent that must be proved. Landlord initially rejected a payment of rent made prior to lease termination based on "pending litigation" and claimed it inadvertently accepted the two later rent checks. There were questions of fact that should be left for trial.

145 East 16th Street LLC v. Nanda: 61 Misc.3d 128(A), 2018 NY Slip Op 51364(U) (App. T. 1 Dept.; 9/28/18; Shulman, PJ, Cooper, Edmead, JJ)