In F* NY LLC v M. a landlord sought possession of a rent-stabilized apartment and a tenant resisted eviction alleging waiver.
The landlord initially served a notice of nonrenewal in 2019, citing its intent to demolish the building under Rent Stabilization Code provisions. That notice made clear that the tenant was not required to vacate until DHCR approved the demolition application. DHCR denied the application in 2021, and the landlord’s Article 78 challenge was dismissed. However, the Appellate Division later annulled DHCR’s denial, finding error in its determination. On remand, DHCR issued a superseding order authorizing the landlord to proceed without offering a renewal lease and permitting eviction if the tenant did not vacate within four months. The tenant remained, and the landlord commenced this holdover proceeding in 2024.
The New York County Civil Court initially sided with the tenant, dismissing the petition on the theory that the landlord had waived its right to evict by accepting rent for several years after the lease expired. On appeal, the Appellate Term, First Department, rejected this reasoning. Waiver, as defined by New York precedent, requires a clear intent to relinquish a known right, and such intent cannot be lightly presumed. Here, the acceptance of rent was consistent with DHCR policy during the pendency of the demolition application and subsequent judicial review. The landlord’s conduct was not inconsistent with its stated intent to pursue demolition and eviction once authorized. Thus, the tenant’s waiver defense was stricken, the petition reinstated and the matter was sent back to the Civil Court for further proceedings.
Turns out, rent checks didn't bulldoze demolition plans.
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DECISION