Opinion
570489/03.
Decided August 6, 2004.
Subtenants MA Enterprises, Inc. and Nick Tsoulos appeal from an order of the Civil Court, New York County, entered June 16, 2003 (Delores J. Thomas, J.) granting sublandlord's motion for summary judgment in a holdover summary proceeding.
Order entered June 16, 2003 (Delores J. Thomas, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
The operative provision of the sublease prohibited an assignment during the first four years of the term, and further provided that "any transfer . . . of any interest in subtenant . . . shall be deemed a prohibited assignment of this sublease". Indisputably, subtenant breached the sublease when it transferred 49 per cent of its shares without prior consent (see Zona, Inc. v. Soho Centrale, LLC, 270 AD2d 12). Subtenant's assertions that the sublandlord waived the violation, by accepting rent and permitting renovations to proceed with knowledge of the assignment, are insufficient to raise a triable issue. The "no waiver" clause in the main lease, incorporated by reference in the sublease, provided: "The receipt by owner of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by such party unless such waiver be in writing". . . . This specific nonwaiver language defeats the claim of waiver as a matter of law (see Excel Graphics Technologies, Inc. v. CFG/AGSCB 75 Ninth Ave., LLC, 1 AD3d 65).
This constitutes the decision and order of the court.