Concourse Nursing Home v. Axiom Funding Group, Inc.

Order, Supreme Court, New York County (Beverly Cohen, J.), entered October 22, 1999, which, to the extent appealed from, in this action to recover rent allegedly overpaid for equipment leased by defendant to plaintiff pursuant to two lease agreements, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff, having continued its beneficial utilization of the equipment rented from defendant beyond the term of the governing leases, was not entitled, pursuant to General Obligations Law § 5-901, to recover rent paid by it for the equipment during the periods of use subsequent to the termination of each lease. While, in view of defendant’s failure to comply with General Obligations Law § 5-901, the subject leases were never effectively renewed for a definite term and may be canceled by plaintiff at any time, the cited statute does not operate to entitle plaintiff to continue knowingly and willingly to accept the benefit of the leased equipment without compensating defendant lessor. Concur — Rosenberger, J. P., Nardelli, Ellerin, Wallach and Rubin, JJ.