Radio System, Inc. v. Sutton Associates, Inc. , 388 N.Y.S.2d 304 ( 1976 )

Order, Supreme Court, New York County, entered February 20, 1976, unanimously modified, on the law, to the extent of granting plaintiff-appellant’s motion for summary judgment and in accordance with the prayer for relief, granting a permanent injunction, and otherwise affirmed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. In the five and one-half years subsequent to June 17,1969, when the Supreme Court directed the parties to proceed with a new appraisal, the defendant not only failed to obtain a new appraisal (to which plaintiff’s rent was to be pegged) but continued plaintiff’s tenancy at $35,000 per annum. The history of this matter warrants the conclusion that the defendant abandoned and waived its right to the appraisal which it now seeks. Hence, there is no need for a hearing on that issue and summary judgment is granted in favor of plaintiff and a permanent injunction is to be issued in accordance with the prayer of the complaint as above noted. Settle order on notice affirmatively stating what should be declared. Concur&emdash; Markewich, J. P., Birns, Capozzoli, Nunez and Yesawich, JJ.