Summary
In Gresser the court held that the defendant real property sellers had "waived their contractual right to cancel the agreement in the event that a rezoning of the property was not obtained by September 1, 1985 [when they] continued to perform under the contract and to request performance by the plaintiff's, and they did not attempt to cancel the agreement until January 21, 1986."
Summary of this case from Kwiatkowski v. 322 W. 57th Owner LLCOpinion
March 23, 1987
Appeal from the Supreme Court, Suffolk County (Brown, J.).
Ordered that the orders are affirmed, with one bill of costs payable by the defendants appearing separately and filing separate briefs.
We find unpersuasive the defendants' contention that the court erred in failing to dismiss the complaint pursuant to the documentary evidence and Statute of Frauds defenses asserted in the motion to dismiss. The plaintiffs have alleged sufficient facts to require a trial on the issue of whether the defendants Princi and Axelrod expressly or impliedly waived their contractual right to cancel the agreement in the event that a rezoning of the property was not obtained by September 1, 1985. Indeed, the record reveals that after the option to cancel became exercisable, Princi and Axelrod continued to perform under the contract and to request performance by the plaintiffs, and they did not attempt to cancel the agreement until January 21, 1986, the same date upon which the application for rezoning was approved. A valid waiver "requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable" (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, rearg denied 57 N.Y.2d 674), and it may arise "by express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage" (Hadden v Consolidated Edison Co., 45 N.Y.2d 466, 469). The waiver need not be reduced to writing in order to be enforceable (see, e.g., Nassau Trust Co. v. Montrose Concrete Prods. Corp., supra). Given the conduct and representations of Princi and Axelrod after September 1, 1985, their lengthy and unexplained delay in seeking to cancel the contract, and their abrupt decision to cancel on the same date as the desired rezoning was approved, we cannot say that the Supreme Court, Suffolk County, erred in denying the motion to dismiss, for triable issues of fact with respect to the plaintiffs' claim of waiver have clearly been raised (see, e.g., American Bag Metal Co. v. Alcan Aluminum Corp., 115 A.D.2d 958; Avendanio v. Marcantonio, 75 A.D.2d 796). Additionally, factual issues have been raised concerning whether the plaintiffs and the defendants Princi and Axelrod entered into and partially performed an oral modification of the written contract (see, Rose v. Spa Realty Assocs., 42 N.Y.2d 338; Ackerman v. Landes, 112 A.D.2d 1081; Marine Midland Bank v. Quality Exterior Corp., 92 A.D.2d 662) as well as whether Princi and Axelrod should be equitably estopped from asserting the aforementioned defenses (see, e.g., Rose v. Spa Realty Assocs., supra; Costa v. Parry, 121 A.D.2d 360; American Bag Metal Co. v. Alcan Aluminum Corp., supra).
Moreover, we discern no error in the granting of the plaintiffs' motion for a preliminary injunction, as the movants sufficiently demonstrated a likelihood of success on the merits, irreparable injury absent a grant of the injunction, and a balancing of the equities in their favor (see generally, Kromholz v. Notey, 121 A.D.2d 668; Matter of Brenner v. Hart Sys., 114 A.D.2d 363; Buegler v. Walsh, 111 A.D.2d 206, lv dismissed 65 N.Y.2d 1012; Family Affair Haircutters v. Detling, 110 A.D.2d 745).
Insofar as the defendant Rosen claims that the granting of the preliminary injunction prejudiced him, he has the right to seek whatever redress he deems appropriate. Bracken, J.P., Rubin, Sullivan and Harwood, JJ., concur.