No Waiver When Landlord Retained Rent Check

LVT Number: 17905

Landlord sued to evict month-to-month tenant after sending tenant a notice terminating her tenancy as of Oct. 31, 2003. Tenant claimed waiver because landlord retained her rent check for a post-termination period. Tenant claimed that the check contained a notation, ''rent 11/03.'' The court ruled for landlord. By itself, the fact that landlord retained the rent check didn't prove waiver. Landlord neither returned nor cashed the rent check but made its intent to terminate the tenancy clear by starting the eviction case two weeks after the tenancy termination date.

Landlord sued to evict month-to-month tenant after sending tenant a notice terminating her tenancy as of Oct. 31, 2003. Tenant claimed waiver because landlord retained her rent check for a post-termination period. Tenant claimed that the check contained a notation, ''rent 11/03.'' The court ruled for landlord. By itself, the fact that landlord retained the rent check didn't prove waiver. Landlord neither returned nor cashed the rent check but made its intent to terminate the tenancy clear by starting the eviction case two weeks after the tenancy termination date. Tenant also owed rent for August, September, and October, so landlord could have applied the check to tenant's outstanding pre-termination rent.

2-12 Sutter LLC v. Crawford: NYLJ, 1/12/05, p. 21, col. 3 (Civ. Ct. Kings; Marton, J)