Opinion
No. 570318/12.
2012-08-14
49 TERRACE CORP., Petitioner–Landlord v. Curtis RICHARDSON, Respondent–Licensee–Appellant, and “John Doe” and “Jane Doe”, Respondents–Undertenants.
Respondent Curtis Richardson appeals from that portion of an order of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), dated December 27, 2011, which denied his motion to dismiss the holdover petition pursuant to CPLR 3211(a)(1) and (7).
Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Cheryl J. Gonzales, J), dated December 27, 2011, affirmed, with $10 costs.
We sustain the denial of appellant's preanswer motion to dismiss the holdover petition, since appellant failed to conclusively establish that petitioner-landlord waived the right to pursue its eviction claim by its post-termination, pre-petition acceptance of a single “rent” payment. “Waiver is an intentional relinquishment of a known right and should not be lightly presumed” (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968 [1998] ). Such an intent “must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act” (Navillus Tile v. Turner Constr. Co., 2 AD3d 209, 211 [2003], quoting Orange Steel Erectors v. Newburgh Steel Prods., 225 A.D.2d 1010, 1012 [1996] ). At most, the record so far developed raises triable issues as to petitioner's intent and the circumstances surrounding its receipt, retention and negotiation of the money order in question.