No Waiver as a Matter of Law Found Where Contract Had Non-Waiver Clause

On March 1, 2017, the Second Department issued a decision in Sunoce Properties, Inc. v. Bally Total Fitness of Greater N.Y., Inc., 2017 NY Slip Op. 01586, holding that there could be no finding of waiver as a matter of law where a contract had a non-waiver provision, explaining:

The presence of a nonwaiver provision in the lease, which stated in relevant part that the failure of the Landlord to insist upon a strict performance of any of the terms, conditions and covenants herein, shall not be deemed a waiver of any rights or remedies that the Landlord may have, and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained, itself raised a triable issue of fact as to whether the plaintiff waived its right to assert its breach of contract cause of action.

(Internal quotations and citations omitted).