No Waiver Based on Landlord's Renewal of Lease

Facts: Landlord's building was a former Mitchell-Lama project converted to fair market housing. In settlement of a court action between landlord and various tenants, tenant agreed in August 2001 to accept a one-year lease that incorporated the terms of the settlement agreement. The settlement agreement provided that the lease would be deemed automatically renewed without further written notice for one-year terms. The settlement agreement set forth how rent would be calculated under each renewal term. The settlement agreement also provided that tenant use her apartment as her primary residence. Tenant's lease started in November 2001. In December 2001, landlord sued tenant in Supreme Court, seeking a declaration that tenant wasn't residing in the apartment as her primary residence. While this case was pending, tenant's lease came up for automatic renewal. Landlord sent tenant a bill for an increased rent amount in November 2002. Tenant then asked the court to dismiss the primary residence case. She claimed that landlord had waived its right to bring the nonprimary residence case by charging her the increased rent under the automatic lease renewal. The court ruled for tenant, and landlord appealed. Court: Landlord wins. The settlement agreement signed in the prior court case clearly requires that before seeking eviction, landlord must seek a declaration of whether tenant primarily resides in an apartment, and must treat the lease as being in full force and effect until then. So landlord was required to renew tenant's lease automatically while waiting for a court decision, and there was no waiver.

Waterside Plaza LLC v. Smith: NYLJ, 11/18/04, p. 29, col. 3 (App. Div. 1 Dept.; Nardelli, JP, Mazzarelli, Sullivan, Lerner, Friedman,JJ)