WEST WAVERLY EQUITIES GROUP v. LIEFF (2001)

Order entered on or about December 15, 2000 (Deighton S. Waithe, J.) modified by denying tenant's motion, reinstating the petition, and remanding the matter to Civil Court for further proceedings consistent with this decision;  as modified, order affirmed, with $10 costs to petitioner-appellant.

 Tenant's CPLR 3211 motion to dismiss the nonprimary residence holdover petition should have been denied.   The landlord's short-lived prosecution of an illegal sublet holdover proceeding-discontinued on consent-was not inconsistent with the landlord's present nonprimary residence claim (see, Rent Stabilization Code § 2525.6[a];  26 Leroy Realty Corp. v. Hendricks, NYLJ, April 22, 1997, at 25, col 4 [App Term, 1st Dept] ) and did not “nullify” the previously served termination notice underlying the within nonprimary residence proceeding.   Nor does the record establish as a matter of law that landlord “intended to relinquish a known right” (Sullivan v. Brevard Assocs., 66 N.Y.2d 489, 495, 498 N.Y.S.2d 96, 488 N.E.2d 1208) when it accepted a single, unsolicited “rent” payment from tenant during the so-called “window period” between termination of the tenancy on nonprimary residence grounds and commencement of the within nonprimary residence proceeding (see, Goldman v. Becraft, NYLJ, July 13, 2001, at 18, col 2 [App Term, 1st Dept] ).

In reinstating the petition, we do not pass upon the landlord's application for leave to conduct disclosure and for payment of interim use and occupation, matters not reached below.   Our disposition is without prejudice to the landlord's right to renew its application for such relief in the Civil Court.

PER CURIAM.