Modlin v. Town & Country Tux, Inc. , 42 A.D.2d 586 ( 1973 )

In. a holdover summary proceeding to recover possession of real property, the tenant appeals, by permission, from an order of the Appellate Term, 9th and 19th Judicial Districts, dated December 5, 1972, which (1) reversed a final judgment of the District Court, Nassau County, Fourth District, entered April 6, 1972, in favor of the tenant and (2) directed judgment for the landlord. Order of the Appellate Term reversed, on the law and the facts, with costs to the tenant, and judgment of the District Court affirmed. The landlord permitted five to six weeks to elapse before rejecting the tenant’s late (by 14 days) notice of lease renewal. The parties occupied adjoining premises in the same building and saw one another casually a number of times during that period. Under all the circumstances, the landlord’s conduct constituted a waiver of the tenant’s default (1 Rasch, Landlord and Tenant [2d ed.], § 331; Long v. Stafford, 103 N. Y. 274). Shapiro, Gulotta, Christ and Brennan, JJ., concur; Latham, Acting P. J., dissents and votes to affirm the order of the Appellate Term.