Mingo Pizza Corp. v. Hirstan Associates ( 2001 )

Order, Supreme Court, New York County (Robert Lippmann, J.), entered October 19, 2000, which, in an action for wrongful eviction, denied plaintiff’s motion for summary judgment on the issue of liability, and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Materials submitted in the subtenant’s eviction proceeding against the sub-subtenant show that plaintiff, the main tenant, knew that defendant, the landlord, was taking steps to immediately enforce the warrant in the landlord’s eviction proceeding against the subtenant and sub-subtenant, and that plaintiff had ample opportunity to intervene in that proceeding or otherwise challenge execution of the warrant. Plaintiffs failure to do so, or to regain possession of the premises by payment of all rent arrears after the eviction, establish the defenses of laches (see, 75A NY Jur 2d, Limitations and Laches, § 357) and waiver (see, 57 NY Jur 2d, Estoppel, Ratification, and Waiver, § 74) interposed by defendant in response to this wrongful eviction action commenced after it had already leased the premises to a new tenant. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Marlow, JJ.