On June 17, 2025, the First Department issued a decision in Board of Mgrs. of the Alfred Condominium v. Miller, 2025 NY Slip Op. 03647, holding that a waiver argument failed for lack of evidence showing a clear manifestation of an intent to relinquish a known right, explaining:
The motion court also properly dismissed defendant’s affirmative defenses of waiver and estoppel. Both the alteration agreement and the condominium’s declaration contain a no-waiver clause, the waiver of which will not be lightly presumed. To the extent defendant’s alterations violate statutory law, they are not waivable, and likewise constitute a breach of §3(a) of the alteration agreement.
In arguing that plaintiff waived any objection to his alterations, defendant relies on his own affidavit and the affidavit of his contractor asserting that the condominium’s board members, staff, and other agents made frequent inspections of the unit. These affidavits do not provide any specifics as to the dates or circumstances surrounding these purported inspections, which alterations were inspected, what the inspections entailed, and what, if any, affirmative conduct manifested plaintiff’s intentional abandonment of a known right. Accordingly, defendant failed to raise a question of fact as to whether plaintiff waived its right to enforce the alteration agreement. Mere silence or oversight does not constitute clear manifestation of an intent to relinquish a known right.
(Internal quotations and citations omitted).