the delay." (Matter of Linker v Martin, 23 AD3d 186, 189 [1st Dept 2005]
[internal quotation marks omitted].) Defendant does not identify any prejudice to his
interests that resulted from delay by plaintiff in bringing this action.
D. Whether Plaintiff's Claims are Barred by Waiver
Defendant argues that "even though [plaintiff] has purported to terminate the Lease it
has continued to send Defendant monthly bills for rent—with interest and late fees
accruing—despite asserting that the Lease was terminated in March 2022."
(NYSCEF No. 76 at 19.) In essence, defendant is arguing that a fact question exists
about whether plaintiff waived its capacity to terminate the lease, because it knew the
premises was uninsured yet still accepted maintenance payments from defendant. But
defendant does not establish that plaintiff's acceptance of maintenance payments could
constitute a waiver of plaintiff's right to insist on compliance with the distinct, unrelated
requirement that the Estate maintain homeowner's insurance for the premises. Nor, in any
event, does defendant explain how this argument could survive the proprietary lease's
no-waiver clause. (See NYSCEF No. 21 at 17.)
E. Whether Plaintiff has Established that Defendant Materially Breached the
Proprietary Lease
Defendant argues that failure to maintain homeowner's insurance is not a material
breach for a residential lease—only for commercial leases. But defendant provides
no authority for this proposition. That, as defendant points out, New York law treats
commercial and residential leases differently in several respects does not, without more,
establish that the law treats them differently in this respect. And defendant does
not provide more.
Defendant also argues that damages, rather than terminating the lease is the