NO QUESTION OF FACT RAISED ABOUT AN ALLEGED ORAL WAIVER OF A LEASE PROVISION, CRITERIA EXLAINED.
The First Department, in a lease-dispute, determined the tenant’s claim that a provision of the lease requiring percentage rent (based upon the income of the tenant) was orally waived did not raise a question of fact. The lease specifically required any waiver to be in writing. The court explained when an oral waiver can be valid, despite the written-waiver requirement:
An agreement in a lease providing that no waiver of a term shall be inferred absent a writing to that effect is enforceable … . Thus, “if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls” … . Tenant correctly notes that the parties to a contract may, by mutual agreement, disregard a no-waiver clause. However, some performance confirming the modification must be present, and it must be “unequivocally referable to the oral modification” … As stated by this Court, in the context of a lease dispute, there must be “sufficient indicia that the reasonable expectations of both parties under the original lease were supplanted by subsequent actions” … . …
Here, tenant has attempted to establish that it did not pay percentage rent over the years because landlord had orally waived the requirement. However, tenant has failed to establish that nonpayment of the percentage rent was unequivocally referable to the alleged statement … . To be sure, where a party orally waives a contract provision requiring the other party to perform an affirmative act, it may be difficult for the other party to establish the waiver other than by demonstrating that it did not do the thing it was originally required to do. Nevertheless, a nonbreaching party should not have to litigate the issue based only on the breaching party’s unsupported and uncorroborated representation that it orally waived a provision. This is the very reason why many contracts require waivers to be in writing. Such a bald representation is all tenant presents here. Accordingly, it has failed to raise an issue of fact. Paramount Leasehold, L.P. v 43rd St. Deli, Inc., 2016 NY Slip Op 01258, 1st Dept 2-23-16
CONTRACT LAW (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/LANDLORD-TENANT (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/WAIVER (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)