Questions of Fact Preclude Summary Judgment on Waiver Defense

On December 30, 2021, Justice Schecter of the New York County Commercial Division issued a decision in My Size, Inc. v. North Empire LLC, 2021 NY Slip Op. 32829(U), holding that questions of fact precluded summary judgment on an affirmative defense of waiver, explaining:

Once a contract is formed, the parties may of course change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel. Thus, contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned, and such abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage.

The intentional relinquishment of a known right should not be lightly presumed. Ordinarily, 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.

A waiver, however, may be proved by undisputed acts or language so inconsistent with the party’s purpose to stand upon its rights as to leave no opportunity for a reasonable inference to the contrary.

In approaching this question, it is useful to recall that the roots of waiver lie firmly in equity, and are designed to prevent the waiving party from lulling the other party into a belief that strict compliance with a contractual duty will not be required and then either suing for noncompliance or demanding compliance for the purpose of avoiding the transaction.

North Empire moves for summary judgment urging that My Size waived preconditions to issuance of the Stock Certificate and unreasonably delayed its issuance to North Empire causing damages. North Empire points to My Size’s course of conduct with it as well as other investors to evince such waiver. However, on this record, there is no basis for a matter of law determination that My Size waived the contractual requirements for notice and surrender of the Notes. Here, there is a question of fact as to whether Mr. Martin and Mr. Walles discussed the Stock Certificate during the relevant period. Accordingly, North Empire’s motion for summary judgment is denied in its entirety as questions of fact remain with respect to My Size’s waiver of conditions precedent to issuance and delivery of the Stock Certificate.

(Internal quotations and citations omitted).

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