Oriental Buffet & Grill Inc. v. Vornado Gun Hill Road LLC

33 A.D.3d 436, 821 N.Y.S.2d 889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered January 9, 2006, which, inter alia, denied plaintiff’s motion for injunctive relief, granted defendant’s cross motion for summary judgment dismissing the complaint, and awarded defendant a judgment of possession, unanimously affirmed, without costs.

No triable issues were raised as to whether there were equitable grounds to relieve plaintiff tenant of the consequences of its failure to exercise its renewal option in a timely fashion. Plaintiffs expenditures for nonpermanent fixtures did not constitute a forfeiture justifying equitable relief (see e.g. Trieste Group, LLC v Ark Fifth Ave. Corp., 13 AD3d 207 [2004]). Nor did defendant landlord’s failure to object to the late renewal constitute a waiver (see Bank of N.Y. v Murphy, 230 AD2d 607, 608 [1996], lv dismissed 89 NY2d 1030 [1997]), particularly in light of the no-waiver clause in the lease (see Avenue of Ams. Deli Corp. v MA Enters., Inc., 4 Misc 3d 139[A], 2004 NY Slip Op 50941[U] [App Term 2004]).

We have considered plaintiffs remaining arguments and find them to be without merit. Concur—Saxe, J.P, Marlow, Nardelli, Sweeny and Catterson, JJ.