Frederick Goldman, Inc. v. Abner Props. Co.

2018 NY Slip Op 1168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2018
• Docket: 5765 651303/10
• Status: Published

Opinion

Frederick Goldman, Inc. v Abner Props. Co. (2018 NY Slip Op 01168)

Frederick Goldman, Inc. v Abner Props. Co.

2018 NY Slip Op 01168

Decided on February 20, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 20, 2018
Renwick, J.P., Richter, Manzanet-Daniels, Andrias, Gesmer, JJ.

5765 651303/10

[*1]Frederick Goldman, Inc., Plaintiff-Appellant,

v

Abner Properties Company, Defendant-Respondent.

Pasich LLP, New York (Jeffrey L. Schulman of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York (Lewis A. Lindenberg of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 13, 2015, which, inter alia, granted the motion of defendant landlord for partial summary judgment against plaintiff commercial tenant on its counterclaim for nonpayment of additional rent, unanimously affirmed, with costs.

Commercial tenant's previous communications of disputing the subject charges by means other than by certified mail, as required by the lease, was insufficient evidence of an "intentional relinquishment [by landlord] of a known right with both knowledge of its existence and an intention to relinquish it" (Silverstein Props. v Paine, Webber, Jackson & Curtis , 104 AD2d 769, 771 [1st Dept 1984], affd 65 NY2d 785 [1985] [internal quotation marks omitted]). The vast majority of correspondence concerned the charges at issue, and the willingness of a party to discuss a dispute will not effectuate waiver (id. ). Commercial tenant's arguments concerning substantial compliance are unpersuasive, particularly since it admittedly did not pay the disputed sums as required under the lease as a condition precedent to objecting to the amounts.

We have considered commercial tenant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 20, 2018

CLERK