Melroy Realty Corp. v. Siegel

• Decision Date: 13 June 1969
• Citation: 303 N.Y.S.2d 198,60 Misc.2d 383
• Parties: MELROY REALTY CORP., Petitioner-Landlord, v. Morton SIEGEL, Respondent-Tenant, Nancy Rourke, Respondent-Undertenant.
• Court: New York City Court

Page 198

303 N.Y.S.2d 198

60 Misc.2d 383

MELROY REALTY CORP., Petitioner-Landlord, v. Morton SIEGEL, Respondent-Tenant, Nancy Rourke Respondent-Undertenant.

Civil Court of the City of New York, New York County, Trial Term, Part XXV.

June 13, 1969.

Irving Glitzenstein, Brooklyn, for petitioner.

Hy Shore, New York City, for respondent, Morton Siegel.

HILDA G. SCHWARTZ, Judge.

This is a holdover summary proceeding brought to evict the tenant of a rent-controlled apartment on which tenant holds a three-year lease expiring May 31, 1970. The grounds advanced are that tenant violated a substantial obligation of his lease in that he failed to obtain the landlord's consent to a three-months' sublease.

The lease expressly provides that the tenant has the right to sublease his apartment or assign his lease, with the consent of the landlord, which consent shall not be unreasonably withheld. It was not disputed that on prior occasions, the tenant had subleased, to which sub-lets the landlord had either consented or imposed no objections.

Here, the tenant orally advised the landlord of the sublease on March 2nd, 1969 and in writing on March 3rd, 1969 providing the details of the sub-lessee's background and responsibility.

It is not disputed that after the oral discussion of the subletting, after receiving tenant's letter advising him of the details and after a personal visit by the landlord to the premises where he met the sub-tenant, the landlord accepted the March 1969 rent for the apartment from the tenant. The cancelled check shows it was desposited and paid on March 13, 1969. This summary proceeding was commenced thereafter.

The landlord accepted the rent with full knowledge of the subletting and prior to the commencement of this summary proceeding. The acceptance of rent by the landlord after the acquisition of knowledge by him of the violation of the terms of the lease, in subletting without the landlord's consent, constituted a waiver of the right to invoke the forfeiture (Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829, 109 A.L.R. 1262; rearg. denied 273 N.Y. 527, 7 N.E.2d 676, 109 A.L.R. 1262; Ireland v. Nichols, 46 N.Y. 413). Having accepted rent, there is a waiver of the provision of the lease against subletting without the landlord's consent. (Chaky v. Altman, Sup., 76 N.Y.S.2d 62, 63; Kingdale Realties v. Sherry, Sup., 106 N.Y.S.2d 796; Farose Realty Corp. v. Shaff, Mun.Ct., 117 N.Y.S.2d 375; Werber v. Weinstein, 207 Misc....