Defendant resorts to the nonwaiver clause of the lease and argues that it could never waive the right to evict for a violation that transcends the lease and flouts the zoning resolution, citing Rasch, New York Landlord & Tenant, Summary Proceedings (2d ed; § 449). It is accurate to say that a landlord may waive a default by accepting rent with knowledge of its existence. (Atkin’s Waste Materials v May, 34 NY2d 422, 427.) But, a no-waiver clause in the lease will preserve the landlord’s right to react to the violation while still accepting rent with knowledge thereof. (Pollack v Green Constr. Corp., 40 AD2d 996, affd 32 NY2d 720; but see Rasch, op. cit., § 738.) Yet, a no-waiver clause has been found inapplicable to a “waiver by open possession * * * [T]he acceptance of rent with knowledge of a subletting constitutes a waiver of the right to terminate the tenancy for breach of the condition against such subletting” (Sagson Co. v Weiss, 83 Misc 2d 806, 807 [App Term, 1st Dept]).
In the case at bar, it is impossible to rule as a matter of law that waiver did not occur. Despite the no-waiver clause, defendant’s alleged instigation and participation in the offending condition from the inception of the lease is so pervasive and active that it may be estopped from relying on the no-waiver clause. (Cf. Rose v Spa Realty Assoc., 42 NY2d 338, 343-344.) Furthermore, it cannot be ascertained that the nature of the violation of the zoning resolution is so serious as to prevent the defendant, for reasons of public policy, from waiving. After all, the new Loft Law contains a procedure for legalizing such occupancy in conformity with the zoning resolution.
HARASSMENT OR RETALIATION