| Beacon 109 223-225 LLC v Mon Sheng Wu |
| 2011 NY Slip Op 51570(U) [32 Misc 3d 140(A)] |
| Decided on August 18, 2011 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Tenant appeals, as limited by his brief, from so much of an order of the Civil Court of the
City of New York, New York County (David J. Kaplan, J.), entered November 29, 2010, as
denied his cross motion for summary judgment dismissing the petition in a holdover summary
proceeding.
Per Curiam.
Order (David J. Kaplan, J.), entered November 29, 2010, insofar as appealed from, affirmed, with $10 costs.
Civil Court properly denied tenant's cross motion for summary judgment of dismissal of the
holdover petition. Tenant failed to establish as a matter of law that landlord "intended to
relinquish a known right" (Sullivan v Brevard Assoc., 66 NY2d 489, 495 [1985]), when
it accepted a single, unsolicited rent check from tenant "during the so-called window period'
between termination of the tenancy on nonprimary residence grounds and the commencement of
the within [holdover] proceeding" (West Waverly Equities Group v Lieff, 190 Misc 2d
280, 281 [2001]; see Baginski v Lysiak, 154 Misc 2d 275, 276 [1992]; Metropolitan Ins. & Annuity Co. v
Hartman, 11 Misc 3d 140[A], 2006 NY Slip Op 50665[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
[*2]
Decision Date: August 18, 2011