Practice point: Once a contract is formed, the parties may change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel. So, contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned, and abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage.
As the intentional relinquishment of a known right, a waiver is not lightly presumed, and mere negligence, oversight or thoughtlessness does not create a waiver. Similarly, a party's reluctance to terminate a contract upon a breach and its attempts to encourage the breaching party to adhere to its obligations under the contract do not necessarily constitute a waiver of the innocent party's rights in the future.
However, a waiver may be proved by undisputed acts or language so inconsistent with the party's purpose to stand upon his or her rights as to leave no opportunity for a reasonable inference to the contrary.
Case: Kamco Supply Corp. v. On the Right Track, LLC, NY Slip Op 02025 (2d Dep't March 22, 2017)
Here is the decision.
Tomorrow's issue: Family Ct Act § 437-a.
