Opinion
June 25, 1998
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
Upon expiration of the lease, the parties entered into a month to month tenancy for a rent that, absent agreement otherwise, was in the amount of any payments made by defendant and accepted by plaintiff (Real Property Law § 232-c; see, Matter of Joyous Holdings v. Volkswagen of Oneonta, 128 A.D.2d 1002, 1006). Although plaintiff could have reserved its right to seek the market value of the premises by endorsing the tenant's checks under protest or without prejudice, as it did in some instances prior to August 20, 1996, plaintiff thereafter abandoned such protest by accepting at least five more rent payments without protest.
Concur — Milonas, J. P., Ellerin, Nardelli, Rubin and Andrias, JJ.