Associated Blind Housing Development Fund Corp. v. Katz

Order, Appellate Term, First Department (Parness, J. P., Miller and McCooe, JJ.), entered February 21, 1989, which affirmed, without opinion, a final judgment of possession of the Civil Court, New York County (Ralph Sparks, J.), entered March 19, 1987, and related orders of the Civil Court, New York County, entered October 15, 1987 (Norman Ryp, J.), and February 5, 1988 (Carol Huff, J.), reversed, on the law, the final judgment of possession and orders vacated, and the proceeding dismissed, without costs.

This is a holdover proceeding brought by petitioner landlord, The Associated Blind Housing Development Fund Corporation, against respondent tenant, Estelle Katz, to recover the premises known as apartment 1103 at 135 West 23rd Street in Manhattan, on grounds of material noncompliance with the lease. Specifically, tenant is alleged to have engaged in harassing and annoying behavior primarily consisting of making "hang-up” telephone calls to various of her neighbors in this Federally funded housing development for the blind.

Upon examination of this record, we conclude that while the evidence of tenant’s offending behavior—which included records of the telephone company as well as the testimony of the neighbors—was sufficient to establish violations of the lease agreement, the landlord waived its right to maintain the *513holdover proceeding when, during the proceeding’s pendency, it entered into lease addenda renewing the original lease. (See, Ansonia Assocs. v Pearlstein, 122 Misc 2d 566.) The addenda, entered into in March and July 1985, declared that "All rights, obligations and interests under the original lease shall remain in effect until the end of the term”, and in light of their inconsistency with the previously brought holdover proceeding, served to reaffirm the tenancy. (Supra, at 567-569.) Concur—Ross, Kassal, Ellerin and Wallach, JJ.

dissents in a memorandum as follows: I would affirm for the reasons stated by Carol E. Huff, J. Moreover, the respondent’s appeal was untimely.