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Appellate Term, First Department: September 28th, 2018

Appellate Term, First Department: September 28th, 2018

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Cases released on: September 28, 2018

By: Shulman, P.J., Cooper, Edmead, JJ.18-053. 145 EAST 16TH STREET LLC, C/O SOL GOLDMAN INVESTMENTS LLC, per-lan-app, v. VIJAY NANDA AND DILIP NANDA, res-ten-res, -AND- ASHOK NANDA, “JOHN DOE,” “JANE DOE,” res-und — Order (Evon M. Asforis, J.), entered August 8, 2017, reversed, with $10 costs, motion denied, petition reinstated and the matter remanded to Civil Court for further proceedings.Tenant’s defense of waiver, premised upon landlord having billed for, accepted and retained two rent payments for the period after termination of the tenancy and prior to the commencement of this nonprimary residence holdover proceeding, should not have been determined on tenant’s preanswer motion (see 49 Terrace Corp. v. Richardson, 36 Misc 3d 143[A], 2012 NY Slip Op 51530[U] [App Term, 1st Dept 2012]). “A waiver is the voluntary abandonment or relinquishment of a known right. It is essentially a matter of intent which must be proved” (Jefpaul Garage Corp. v. Presbyterian Hosp., 61 NY2d 442, 446 [1984]), and should not be lightly presumed (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 968 [1988]). Since the preanswer now before us indicates that landlord initially rejected a payment of rent due and owing prior to the lease termination date, citing the “pending litigation,” and landlord claims to have inadvertently accepted the two later (posttermination) payments here at issue, we believe the waiver defense is an issue that is better suited to be decided at trial (see Matter of Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99 [2015], appeal dismissed 26 NY3d 1141 [2016]; see also Sullivan v. Brevard Assocs., 66 NY2d 489, 495 [1985]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.September 28, 2018

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