Appeal from (1) a decision of April 14, 2005, and (2) a final judgment, entered May 26, 2005, of the Justice Court of the Village of Nyack, Rockland County (Robert S. Knoebel, Jr., J.). The decision and final judgment, following a hearing held on landlord's motion and tenant's cross motion for summary judgment, awarded possession to landlord in a holdover summary proceeding.

Appeal from decision dismissed. No appeal lies from a decision (UJCA 1702; see Schicchi v J. A. Green Constr. Corp., 100 AD2d 509 [1984]).

Final judgment reversed without costs, motion by landlord for summary judgment denied, and cross motion by tenant for summary judgment dismissing the petition granted.

In this holdover proceeding commenced in November 2004, landlord alleges that it terminated tenant's Section 8 tenancy based on tenant's substantial violation of the lease agreement and of landlord's rules and regulations. Landlord's notice of termination specified several alleged violations, including primarily a claim of chronic nonpayment of rent. Landlord moved for summary judgment based on the chronic- nonpayment claim, asserting that tenant's repeated failures to pay rent, which required landlord to commence numerous nonpayment proceedings, established a substantial violation of the lease agreement. Tenant responded that all of the incidents of nonpayment (and all but one of the other alleged violations) occurred prior to landlord's renewal of tenant's lease in June 2004 and its acceptance of tenant's rent payments thereunder. Tenant claimed that landlord's renewal of the lease and acceptance of rent constituted a waiver of the breaches. Landlord replied that it was required by federal regulation to renew tenant's Section 8 lease and that there can be no waiver of a chronic-nonpayment cause of action.

In our view, landlord's motion for summary judgment should have been denied. Tenant is in possession pursuant to the June 2004 renewal lease. Contrary to its contention, landlord [*2]was not required to renew the lease in June 2004 after tenant's course of conduct of chronic nonpayment, but could have served the termination of tenancy notice then, or prior thereto. Similarly, landlord was not required to continue to accept tenant's rent payments under the renewal lease. Yet landlord, with full knowledge that it had an apparently viable cause of action based on tenant's chronic nonpayment, executed the renewal lease and accepted tenant's rent payments thereunder. These actions are not without legal consequence (see Stepping Stones Assoc. v Seymour, 8 Misc 3d 138[A], 2005 NY Slip Op 51309[U] [App Term, 9th & 10th Jud Dists]; compare Ireland v Nichols, 46 NY 413, 416 [1871] ["Any act done by a landlord, knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture"]; see also Atkin's Waste Materials, Inc. v May, 34 NY2d 422 [1974]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings §§ 23:15, 23:16 [4th ed]). As a result of its actions, landlord is foreclosed from thereafter seeking to evict tenant based exclusively on the incidents of nonpayment (or other violations) which occurred prior to the commencement of the renewal lease. Since landlord neither alleged nor proved any rent default subsequent to the June 2004 renewal, its claim of chronic nonpayment fails. Of course, if the pattern of nonpayment (or other violations) were to continue under the renewal lease, landlord would be entitled to adduce proof of the violations which preceded the renewal lease in support of its grounds for eviction.

Since the only violation - - regarding an illegal tenant - - which was alleged to have occurred subsequent to the lease renewal was not adequately specified in the termination notice (see 24 CFR 247.4 [a] [requiring that the termination notice state the reasons for the termination "with enough detail to enable the tenant to prepare a defense"]; HUD Handbook 4350.3 REV-1 § 8-13 [B] [2] [c] [2]), summary judgment is granted to tenant dismissing the petition.

Rudolph, P.J., LaCava and Scheinkman, JJ., concur.
Decision Date: December 13, 2007