A recent decision by the Kings County Commercial Division reinforces the venerable New York principle that waiver is a creature of intent, and will not be imposed without a strong showing that the waiving party so intended.1 In Brooklyn Fed. Saving Bank v. 9096 Meserole St. Realty LLC, Justice Robert J. Miller rejected an argument that a lender had waived its right to declare a default based upon its alleged oral representations. Because waivers require an unequivocal showing of intent to waive, the borrower’s allegations that the lender’s representative had “temporarily waived” the right to default failed in the face of a clear “no-oral-modification” clause in the mortgage.
In contrast, the distinct doctrine of estoppel turns upon the detriment suffered by one party stemming from the conduct of another. Waiver and estoppel are often applied by courts in the same breath.2 Both doctrines, after all, serve to foreclose the exercise of a party’s right based upon the party’s words or conduct. Nevertheless, a number of Commercial Division decisions within the last year provide helpful illustrations of the important differences between these two doctrines.
Waiver
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