Although the complaint was dismissed below on the ground that appellants failed to exhaust their administrative remedies, nevertheless, the court went on to find that the legislative history of this provision did not support appellants' claim that it was intended to confer seniority for all employment-related purposes. While we agree with the dissent that appellants were not required to exhaust administrative remedies because the only question here is one of statutory construction (Byer v. City of New York, 50 A.D.2d 771 [1st Dept 1975]), we cannot agree with the dissent's reading of the statute or interpretation of its legislative history. Section 80 (7) provided, in pertinent part, that any member of New York City's uniformed services, suspended on or about July 1, 1975 because of economy measures taken by the city, who returned to such service: "shall be deemed to have been in continuous service in determining seniority and length of service regardless of the duration of such suspension; provided, however, that for retirement purposes, a member receiving such service credit shall pay into the annuity savings fund of the retirement system the amount of the employee contributions required to have been paid into the retirement system for such service, within one year after this subdivision shall have taken effect."
The debtors must have known of their right to prior notice of the sale and have realized that they were renouncing that right. This knowledge is not to be imputed; "[t]here is, in this context, no presumption that all must know the law ( Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N.Y. 313, 171 N.E. 75)." Byer v. City of New York, 50 A.D.2d 771, 771, 377 N.Y.S.2d 52, 53 (1st Dep't 1975). The debtors, Ronald and Sydel Winer, are school teachers and not sophisticated business people.
Since the question of whether the trustees had a duty or right to administer or operate the Bureau was purely one of law rather than fact, we have chosen to resolve it, and failure to exhaust administrative remedies does not necessarily preclude such resolution. See, e.g., Merry Heart Nursing Convalescent Home, Inc. v. Dougherty, 131 N.J. Super. 412, 417, 330 A.2d 370 (1974); Byer v. New York, 50 App. Div.2d 771, 377 N.Y.S.2d 52, 53 (1975). We also note that any facts determined by the trial court in the proceeding below are not controlling in a de novo hearing before the Insurance Commissioner.
However, waiver โis an intentional relinquishment of a known right and should not be lightly presumedโ (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988] ). Plaintiff's former chief financial officer stated in his affidavit that at the outset of the management agreement, he had set up an automatic payment for a recurring monthly charge of plaintiff's management fee, and that it was not until he was in the process of preparing a final accounting and reconciliation of the account, that he first realized the mistake. It is well settled that mere silence or oversight does not constitute clear manifestation of an intent to relinquish a known right ( see CourtneyโClarke v. Rizzoli Intl. Publs., 251 A.D.2d 13, 676 N.Y.S.2d 529 [1st Dept.1998] ). Nor does mistake, negligence, or thoughtlessness ( see EchoStar Satellite L.L.C. v. ESPN, Inc., 79 A.D.3d 614, 617, 914 N.Y.S.2d 35 [1st Dept.2010]; Byer v. City of New York, 50 A.D.2d 771, 377 N.Y.S.2d 52 [1st Dept.1975] ). At the very least, under the circumstances of this case, the issue of whether plaintiff intended to forgo its right to payment of management fees based on 5% of defendants' gross income, is a question of fact ( see Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 [1984] ). However, the motion court properly dismissed that part of plaintiff's third cause of action, for account stated, based on the underpaid management fees, on the ground that defendants did not assent to the account ( see Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 153, 371 N.Y.S.2d 675, 332 N.E.2d 859 [1975] ).
It is well settled that mere silence or oversight does not constitute clear manifestation of an intent to relinquish a known right (see CourtneyโClarke v. Rizzoli Intl. Publs., 251 A.D.2d 13, 676 N.Y.S.2d 529 [1st Dept.1998] ). Nor does mistake, negligence, or thoughtlessness (see EchoStar Satellite L.L.C. v. ESPN, Inc., 79 A.D.3d 614, 617, 914 N.Y.S.2d 35 [1st Dept.2010] ; Byer v. City of New York, 50 A.D.2d 771, 377 N.Y.S.2d 52 [1st Dept.1975] ). At the very least, under the circumstances of this case, the issue of whether plaintiff intended to forgo its right to payment of management fees based on 5% of defendants' gross income, is a question of fact (see Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 [1984] ).
Commonly, it is sought to be proved by various species of proofs and evidence, by declarations, by acts and by non-feasance, permitting differing inferences and which do not directly, unmistakably or unequivocally establish it. Then it is for the jury to determine from the facts as proved or found by them whether or not the intention existed" ( Alsens Am. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37 [1917] [emphasis added]; see Bono v Cucinella, 298 AD2d 483, 484 ["the question of whether waiver has occurred is generally a question left to the finder of fact"]). In Byer v City of New York ( 50 AD2d 771), this Court reversed the dismissal of a complaint on the ground of waiver and estoppel finding that Special Term's determination "that the plaintiff had relinquished a right that, although unknown to him, ought to have been known since it was a right vested by statute and he is an attorney" was contrary to law. This finding was based upon the principle that "[a] waiver is an intentional relinquishment" that "cannot be created by `[n]egligence, oversight or thoughtlessness'" ( id. at 771, quoting Alsens, 222 NY at 37).
In any event, the instant situation does not present a substantive factual dispute between the parties. What is really involved here is purely the construction of the relevant statutory and regulatory framework, and the exhaustion of administrative remedies is not mandated (McKechnie v. Ortiz, 132 A.D.2d 472; Byer v. City of New York, 50 A.D.2d 771). In that regard, Social Services Law ยง 365-a provides that:
The maxim `a man is presumed to know the law,' is a trite, sententious saying, `by no means universally true.'" Such being so, there would occur a complete failure of logic were we to hold high school students chargeable with knowledge of an association's rules governing their conduct in athletics absent any notice of the rules, their contents or applicability (cf. Byer v. City of New York, 50 A.D.2d 771). In light of the failure of the respondent association to adduce proof of actual or constructive notice to petitioner, we find the determination that she violated the rule to be without sound basis in reason and to have been made without regard to the facts.
The eighth defense, waiver, is likewise dismissed for failure to allege that AAM waived its claims against Hindlin. (Byer v City of New York, 50 A.D.2d 771, 771 ["A waiver is an intentional relinquishment [of a right]."].)
It is well settled that waiver "cannot be created by 'negligence, oversight or thoughtlessness.'" Byer v. City of New York, 50 A.D.2d 771 (1st Dept 1975) (quoting Alsens Amer. Portland Cement Works v. Degnon Contr. Co., 222 N.Y. 34, 37 (1917)). Indeed, such intention "'must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act."