Landlord Didn't Waive Right to Sue Tenant for Unpaid Rent

January 1, 2004

LVT Number: 17076

Landlord sued to evict tenant for nonpayment of rent. While the case was pending in housing court, tenant moved out. Landlord then accepted tenant's surrender of the apartment, discontinued the nonpayment case, and started an action in state Supreme Court for the back rent. Tenant asked the court to dismiss the case. He claimed that landlord waived the right to sue for the rent by discontinuing the other case. The court ruled for tenant. Landlord appealed and won.

Landlord sued to evict tenant for nonpayment of rent. While the case was pending in housing court, tenant moved out. Landlord then accepted tenant's surrender of the apartment, discontinued the nonpayment case, and started an action in state Supreme Court for the back rent. Tenant asked the court to dismiss the case. He claimed that landlord waived the right to sue for the rent by discontinuing the other case. The court ruled for tenant. Landlord appealed and won. Landlord's discontinuance of the prior nonpayment case didn't state that it was ''with prejudice.'' Nothing in the court record indicated that landlord agreed to accept tenant's surrender as a full settlement. So landlord could proceed with the new lawsuit for unpaid rent.

JB Wendover LLC v. Kirk: NYLJ, 12/15/03, p. 37, col. 5 (App. Div. 2 Dept.; Florio, JP, Friedmann, Townes, Cozier, JJ)

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