Chapter 35 WAIVERS

JurisdictionNew York

Chapter Thirty-Five

Waivers

I. Waivers, Generally; Waiver of Discovery and Recitation of Knowledge of Right to Counsel

Modification, waiver and estoppel are separate and distinct doctrines, having different elements.5860 Common to settlement agreements is confirming language of a mutual waiver to conduct further discovery.5861 Although the clarity of a waiver to conduct further discovery cannot possibly speak any more assertively regarding the recipient spouse's alert and carefully weighed assent to either terminate or, for that matter, not ever begin the discovery process, nevertheless, not uncommonly, ill-motivated parties urge the agreement's fatality based on the failure to have received otherwise discoverable information, notwithstanding the fact that they had waived their discovery rights. Barring actionable fraud, logic, however, defeats the possibility of a willful withholding of disclosure once a party has knowingly and consciously declared (1) his or her intention not to seek any or additional disclosure or (2) his or her awareness of the other's financial circumstances,5862 especially after having consulted with or having been represented by independent counsel.5863 A failure to disclose does not, standing alone, constitute fraud or overreaching sufficient to vitiate a prenuptial agreement.5864

In Kany v. Kany,5865 plaintiff-former-wife's fraud claims of concealment were conclusively refuted by the plain terms of the settlement agreement, pursuant to which plaintiff waived any and all rights and claims to "any participation or interest that [defendant] may now or in the future have in any retirement plan." Thus, she assumed the risk that at the time the agreement was executed defendant had an interest in a retirement plan of which she was not aware. Moreover, plaintiff specifically acknowledged that she had made her own independent investigation of defendant's business affairs and was waiving further disclosure.

II. Waivers, Express or Implied, Silence and Inaction May Be Determinative

Parties may waive their rights under a contract or under a decree whether foreign or domestic when there is no law preventing waiver.5866 Any provision of a contract is subject to waiver, particularly a provision requiring timely payment.5867 The burden of proving a waiver is upon the party asserting such defense.5868

Generally, excepting instances where there would be transgressions of public policy, all rights and privileges to which one is legally entitled, ex contractu or ex debito justitiae, may be waived,5869 including contractual rights.5870 Waiver is voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed.5871 A waiver is the intentional relinquishment of a known right which may be accomplished by express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage;5872 it must be clear, unequivocal and deliberate.5873 The intent to waive a right must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act.5874

Withdrawal of a claim "without prejudice" does not bar a new claim for the same amounts.5875

It is essentially a matter of intention. Commonly, it is sought to be proved by various species of proofs and evidence, by declarations, by acts and by nonfeasance, permitting differing inferences and which do not directly, unmistakably or unequivocally establish it.5876 When the lapse of time is occasioned or accompanied by a refusal or a failure to claim or act under the contract and is so great or of such characteristics as to amount to a waiver or abandonment of the contract, the party who does not come into court until after such delay will have forfeited all claim to equity.5877 The issue is not simply that of addressing the fact of mere silence or mere inaction but of addressing that silence or that inaction in a given context of surrounding relevant circumstances. Under a given set of circumstances, the silence and inaction may well become not only significant, but dispositive.5878 A failure to prosecute one's rights over a protracted period of time constitutes a "silent acquiescence" and a forfeiture of the right to pursue the claim.5879 Waiver will not be found where one party otherwise lulled the other into sleeping on its rights.5880

In Makris v. Makris,5881 Elaina Makris filed a petition to enforce the maintenance provision of the parties' judgment of divorce. Brett filed a petition to terminate his maintenance obligation, alleging an oral agreement to terminate maintenance obligation, which agreement Elaina ratified by failing to demand payments for more than 16 years. After a hearing, the Support Magistrate awarded Elaina maintenance arrears. The Family Court denied Brett's objections. The Appellate Division reversed.

Pursuant to DRL § 236(B)(9)(b), a judgment or order as to maintenance may be modified or annulled after the accrual of arrears where "the defaulting party shows good cause for failure to make an application for relief from the judgment or order directing payment prior to the accrual of such arrears." Brett made an adequate showing of good cause because Elaina's failure to make any written demands or proceedings to enforce the provision for over 16 years5882 evinced an intent to abandon her right to maintenance. Significantly, a prior enforcement petition for child support showed that she "does not advance herself as one prone to sleeping on her rights."

Jumax Associates v. 350 Cabrini Owners Corp.5883 sets forth examples of how the intention to waive a known right is proved:

Negligence, oversight, or thoughtlessness does not create it. The intention to relinquish the right or advantage must be proved. Occasionally it is proved by the express declaration of the party, or by his undisputed acts or language so inconsistent with his purpose to stand upon his rights as to leave no opportunity for a reasonable inference to the contrary. Then the waiver is established as a matter of law. 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."

Waiver may be expressed or implied,5884 or it may be written or verbal. It may be established by express statement or agreement, by acts and conduct manifesting an intent and purpose not to claim the alleged advantage or from which an intention to waive may reasonably be inferred, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive.5885 A waiver not only need not be expressed, it need not be expressed in words.5886

There may be a waiver by express agreement, or through estoppel; but neither is required to effect that result, as words or acts from which an intention to waive may reasonably by inferred are sufficient, at least when acted upon.5887 Waiver is usually a matter of intention as indicated by the language or conduct, and knowledge, actual or constructive, of the existence of the right or condition alleged to have been waived is an essential prerequisite to its relinquishment.5888

For a waiver to be effective the party to be estopped had to have been aware of certain facts and, being aware of them, elect not to take advantage of them because it will not be inferred from mere silence or inaction.5889 The stipulation, in Lamassa v. Lamassa,5890 provided that the defendant specifically waived any interest in a variable supplement fund (VSF). The defendant's counsel stated that, under the law in effect at the time, VSF benefits were not marital property. The defendant confirmed that she understood the effect of the stipulation and voluntarily agreed to waive any interest in the VSF. Subsequently, the defendant moved to modify the QDRO by adding a provision to distribute the marital portion of the VSF on the basis that the law concerning the distribution of VSFs had changed.5891 The referee concluded that the defendant was entitled to a distribution, as her waiver had been made under a misapprehension of the law and, thus, was not voluntary. The Appellate Division reversed holding that, while the law was later clarified to allow distribution of VSF benefits, the plaintiff did not have definitive guidance on the issue was not a sufficient basis to avoid her otherwise knowing and voluntary waiver.

It is a basic rule that a person may not knowingly relinquish rights that she does not knowingly possess.5892 The issue is not simply that of addressing the fact of mere silence or mere inaction but of addressing that silence or that inaction in a given context of surrounding relevant circumstances. Under a given set of circumstances, the silence and inaction may well become not only significant, but dispositive.5893 A waiver, to the extent that it is executory, may be withdrawn, provided the party whose performance has been waived is given notice of withdrawal and a reasonable time after notice within which to perform.5894

In 1983, the parties, in Stassa v. Stassa,5895 executed a stipulation of settlement, which required the defendant to pay maintenance to the plaintiff. The maintenance obligation included an annual cost of living adjustment (COLA) as of each May commencing in 1984. The stipulation further provided, that "[t]he failure of either party to insist in one or more instances upon the strict performance of any of the terms of this Agreement . . . shall not be construed as a waiver or relinquishment for the future of any such term or terms, and the same shall continue in full force and effect."

In May 2008, the plaintiff commenced an action alleging that the defendant breached the stipulation by failing to adjust the annual COLA increases. Her responses to the defendant's interrogatories admitted that she...

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