According to the Appellate Division, Third Department, the answer is a resounding no.
In Bennies Buddies, Inc. v. Lazarian Society for Animals of Congregation Brothers of St. Lazarus , Bennies leased 15 acres of adjoining land from the Lazarian Society, in order to comply with a local ordinance that imposed a minimum-area requirement on the specific use that Bennies was making of the property. While the lease stipulated that rent would be paid on the first day of each month, a rider to the agreement afforded Bennies a 15-day grace period. The rider also provided Bennies with an option to purchase the leased property on or before the expiration of the agreement's term.
Bennies made multiple rent payments beyond the grace period, which the Lazarian Society accepted. In March of 2005, however, when Bennies again attempted to make a rent payment beyond the grace period, the Lazarian Society sent it back. The following month, the Lazarian Society again rejected the rent payment and treated the lease as having been rescinded as a result of Bennies' payment defaults.
Despite these rejections, Bennies then attempted to exercise the purchase option. When the Lazarian Society rejected that offer, Bennies filed a lawsuit seeking specific performance.
On motion, the Sullivan County Supreme Court dismissed the complaint, finding that the Lazarian Society had not waived the right to terminate the lease for late payment of rent, and that Bennies' breach terminated the lease and the accompanying purchase option. Bennies appealed, contending the Lazarian Society never gave notice of the termination and had waived its right to declare a payment default by repeatedly accepting late rent payments.
The AD3 was unpersuaded.
Since the lease was unambiguous, the court looked to the language of the parties' agreement to determine its meaning and to ascertain the effect of the tenant's default. In this instance, the agreement clearly delineated that the failure to pay rent within the grace period was a default, and that such a breach terminated the lease, regardless of whether the landlord provided notice of the termination. And, since the purchase option was contained within the lease, that option similarly lapsed upon the agreement's end.
The AD3 also didn't buy the argument that the Lazarian Society's prior acceptance of late payments triggered a waiver of its right to terminate the lease for subsequent payment defaults, particularly since the lease provided that the acceptance of rent following a breach did not waive the Lazarian Society's rights. So while the acceptance of late payments may have excused those specific lapses, it didn't serve as a waiver of any future defaults.
Bennies' final argument, that it was entitled to equitable relief because it could only legally continue the special use of its property if it had the use of the Lazarian Society's parcel, also fell on deaf ears since Bennies' hardship was the direct result of its own misconduct.
Clearly, the AD3 was no buddy of Bennies here.
For a copy of the Appellate Division's decision please use this link: Bennies Buddies, Inc. v. Lazarian Society for Animals of Congregation Brothers of St. Lazarus