Opinion
October 9, 1990
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
Plaintiff's failure to avail itself of the right to examine further documents at defendants' premises, between November 16 and December 31, 1987, until two years later, did not constitute a waiver. Waiver is the intentional relinquishment of a known right, which must be evidenced by a clear manifestation of intent. (Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966.) Insofar as plaintiff and defendants untimely proceeded with other aspects of discovery, pursuant to the preliminary conference order, there is no basis to hold that this aspect of discovery was waived. Moreover, it would be unfair to require plaintiff to defend against defendants' counterclaims without full disclosure. We also note that defendants never responded to plaintiff's original request for documents.
Concur — Murphy, P.J., Kupferman, Ross and Ellerin, JJ.