Opinion
October 15, 1991
Appeal from the Supreme Court, Westchester County (Facelle, J.).
Ordered that the order is affirmed, with costs.
In this action, the plaintiffs seek a judgment, inter alia, declaring that, since February 1, 1988, a month-to-month tenancy exists between themselves, as tenants, and the defendant, as landlord. In this regard, the plaintiffs assert that a purported exercise of their option to renew the leases between the parties was ineffective because of their breach of material provisions of those leases. In response, the defendant asserts that the plaintiffs effectively exercised the option to renew. With respect to the plaintiffs' claimed default under the leases, the defendant asserts that it waived any default.
The Supreme Court denied the plaintiffs' motion for summary judgment, concluding, inter alia, that questions of fact exist relating to the defendant's purported waiver of any default by the plaintiffs under the leases. We affirm (see, Jefpaul Garage Corp. v. Presbyterian Hosp., 61 N.Y.2d 442; Modlin v. Town Country Tux, 42 A.D.2d 586; see also, 74 N.Y. Jur 2d, Landlord and Tenant, § 737; 1 Rasch, New York Landlord and Tenant § 11:40 at 509 [3d ed]). We note that the plaintiffs specifically argue that the defendant is precluded, as a matter of law, from asserting that it waived their default under the leases. In support, the plaintiffs rely on a lease provision which required that any waiver by the landlord of a default by the tenant be in writing. This provision was patently for the landlord's sole benefit. Therefore, the defendant could properly forego its enforcement (see, Laxrand Constr. Corp. v. R.S.C.A. Realty Corp., 135 A.D.2d 685; De Freitas v. Holley, 93 A.D.2d 852; BPL Dev. Corp. v Cappel, 86 A.D.2d 591; see also, United Mut. Life Ins. Co. v. ICBC Corp., 64 A.D.2d 506; 22 N.Y. Jur 2d, Contracts, § 330; cf., W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157). Accordingly, even in the absence of a written waiver, the defendant is not precluded from raising the issue of its waiver of the plaintiffs' default under the leases. Mangano, P.J., Thompson, Bracken and Copertino, JJ., concur.