What happens when your client unintentionally takes steps which could waive their rights? This was the question recently addressed by the Appellate Division, Second Department in Georgetown Unsold Shares, LLC v. Arlene Ledet A/K/A Arlene Solkoff. 130 A.D.3d 99, 12 N.Y.S.3d 160, 2015 N.Y. Slip Op. 05185 (2d Dept. 2015).
In this matter, the landlord had served notice that they were not renewing a rent stabilized lease because the tenant was actually living out of state. During the period between the notice of non renewal and the filing of the formal petition to cancel the lease, the landlord received rent checks in the mail which were unintentionally deposited. Following the filing of the petition in the Civil Court of Queens, the tenant moved to dismiss the petition, arguing that the landlord had waived their rights to terminate by cashing the rent checks. The Civil Court agreed with the tenant and dismissed the action. Two years later, a split panel of the Appellate Term for the 2nd 11th and 13th Judicial Districts affirmed the ruling of the Civil Court. However, since the ruling of the Appellate Term was also at odds with rulings of other Appellate Term First Department, the court also granted the landlord’s motion for leave to appeal to the Appellate Division, Second Department.
The Appellate Division, Second Department in a well-written lengthy opinion, reversed the rulings of the Appellate Term and Civil Court and ruled that the acceptance of the rent check did not automatically constitute a waiver of the landlord’s rights. In so doing, the Appellate Division accepted our arguments on behalf of the landlord that a waiver of a right must be knowing and intentional. After reciting many of the cases and arguments cited in our Appellant’s Brief, the court observed that
We similarly conclude that, pursuant to the New York City Rent Stabilization Law of 1969 and the Rent Stabilization Code, a landlord’s acceptance of unsolicited rent after the expiration of a lease does not, standing alone, amount to a voluntary relinquishment of the right to contest a tenant’s possession on the basis that the leasehold is not the tenant’s primary residence. Since the very essence of a waiver is the intentional relinquishment of a known right, a waiver cannot be created via negligence, oversight, or thoughtlessness
The tenant has since filed for and received leave to appeal to the New York Court of Appeals.