Hudsonview Co. v. Jenkins

Hudsonview Co. v. Jenkins

Opinion

 [*389]  [**742]   Michael D. Stallman, J.

 [*390]  Does a landlord waive its right to maintain an illegal use eviction proceeding by accepting rent, renewing the lease or commencing a nonpayment proceeding after serving a notice of termination?

FACTS

Police executed a search warrant for the subject apartment in December 1994. Over a two-day period, they arrested respondent ¹ and another individual and recovered a substantial quantity of cocaine, ammunition and other property asserted to be indicia of a narcotics-related business. The apartment is located in a Federally subsidized building; it is not subject to local rent regulation.

 [***2]  It is undisputed that respondent paid, and petitioner accepted, all rent due through June 1995, and that respondent partially paid, and petitioner accepted, the July and August 1995 rent. On June 28, 1995, respondent and petitioner's agent signed a one-year renewal lease for a term commencing July 1, 1995.

On January 26, 1996 petitioner served on respondent a notice of termination, that demanded respondent to surrender possession by February 5, 1996. On or about January 30, 1996 petitioner commenced a nonpayment proceeding for arrears dating from August 1995. That proceeding was dismissed on March 4, 1996 because of petitioner's failure to appear in court.

On or about March 9, 1996 petitioner commenced this illegal use proceeding pursuant to RPAPL 711 (5) and 715 (1) after retaining new counsel. Respondent seeks dismissal, asserting that petitioner waived its right to bring an illegal use proceeding by accepting rent after respondent's arrest, by renewing respondent's lease and by commencing a nonpayment proceeding after serving a notice of termination.

STATUTORY BASIS

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