Turner Constr. Co. v. US Framing Inc. - 2015 NY Slip Op 51617(U), 49 Misc. 3d 1213(A), 28 N.Y.S.3d 651 (Sup. Ct.)

Rule:

Waiver is the voluntary and intentional relinquishment of a known right. A waiver may be accomplished by express agreement or by such conduct or a failure to act as to evince an intent not to claim the purported advantage.

Facts:

Plaintiff entered into a contract with non-party Shelter Cove to provide general construction services to an apartment complex. Plaintiff contractor and the defendant subcontractor entered into a Subcontract agreement. The countersigned copy of the contract was belatedly sent by the plaintiff to the defendant. Later on, their contractual relationship turned sour, so plaintiff engaged replacement contractors to complete the work called for under the Subcontract. Plaintiff filed a complaint for damages against the defendant for the latter’s failure or refusal to perform the agreement. Defendant asserted that parties never had a valid Subcontract because plaintiff had failed to return a countersigned copy to the defendant within 45 days as required by the Article II contract.

Issue:

Did the defendant waive its right of rescission under the Subcontract?

Answer:

Yes.

Conclusion:

Having performed under the Subcontract for 5 months, accepted substantial payments from plaintiff, and remained silent about the non-receipt of the Subcontract after the deadline had passed, defendant knew or should have known that plaintiff would rely upon its continuing silence by failing to remedy the misdelivery and/or refraining from taking timely steps to replace defendant as subcontractor. Having reasonably relied upon defendant's silence, plaintiff would be substantially and unjustifiably prejudiced by the delay and additional expense attendant to defendant’s belated invocation of Article II.