Richards Parker Colonnelli, PL, New York (Jennifer L. Stewart
of counsel), for appellant.
Leer & Greenberg, New York (Evan Van Leer Greenberg of
counsel), for respondent.
J.P., Moskowitz, Gische, Kahn, Gesmer, JJ.
Supreme Court, New York County (Doris Ling-Cohan, J.),
entered October 29, 2015, which, to the extent appealed from,
as limited by the briefs, granted plaintiff's motion for
summary judgment as to liability on its breach of contract
claim, unanimously reversed, on the law, without costs, and
the motion denied.
motion court correctly concluded that the obligation
undertaken by the previous owners of a building, currently
owned by defendant, to provide steam heat to adjacent
buildings, including one owned by plaintiff, as reflected in
a written agreement between the previous owners of
defendant's building and the previous owners of the
adjacent buildings (Heating Agreement), which was recorded in
the Office of the City Register of the City of New York, is a
covenant running with the land. Accordingly, it is binding on
defendant so long as both buildings are in existence (see
Nicholson v Broadway Realty Corp., 7 N.Y.2d 240, 244-247
). Furthermore, the motion court correctly ruled that
plaintiff established that defendant committed a breach of
that covenant by choosing to cease providing heat to
to plaintiff's urging, defendant's argument as to
plaintiff's waiver of any objection to the termination of
the Heating Agreement is preserved for appellate review. As
to that argument, a covenant running with the land may only
be waived or released by those the covenant is intended to
benefit (see Water's Edge on Saratoga Lake
Homeowners' Assn. Inc. v Weissman, 205 A.D.2d 1014');">205 A.D.2d 1014
[3d Dept 1994] lv dismissed 84 NY 923 ). Here,
plaintiff, as the owner of a building to which heat was to be
provided by defendant in accordance with the covenant, was
clearly intended to benefit from that covenant, and was,
therefore, legally eligible to waive it.
respect to the circumstances under which a waiver may be
effective, our Court of Appeals has explained that
"[c]ontractual rights may be waived if they are
knowingly, voluntarily and intentionally abandoned" and
that "[s]uch abandonment may be established by
affirmative conduct or by failure to act so as to evince an
intent not to claim a purported advantage"
(Fundamental Portofolio Advisors, Inc. v Tocqueville
Asset Mgt., L.P., 7 N.Y.3d 96, 104  [internal
quotation marks omitted]). In this case, the agreement
provides that "in the event the owner of any of said
parcels [including plaintiff] shall elect to terminate and
cancel this agreement with respect to said parcel, which
election shall be made by written notice to the owner of
Parcel I [currently, defendant], then this agreement shall
end and terminate with respect to any such parcel as of...
the date when notice of election to cancel is given."
contention that this language precludes its waiver of the
covenant by any means other than a writing is misplaced.
"[A] contracting party may orally waive enforcement of a
contract term notwithstanding a provision to the contrary in
the agreement. Such waiver may be evinced by words or
conduct, including partial performance" (Matthew
Adam Props., Inc. v United House of Prayer for All People of
the Church on the Rock of the Apostolic Faith, 126
A.D.3d 599, 600 [1st Dept 2015]). Here, the record reflects
that a representative of plaintiff orally advised a member of
defendant's coop board that plaintiff would install its
own boiler to provide heat to its own building independently.
is an intentional relinquishment of a known right and should
not be lightly presumed" (Gilbert Frank Corp. v
Federal Ins. Co., 70 N.Y.2d 966, 968 ). On the one
hand, the record is bereft of any objection by plaintiff to
defendant's repeated warnings that the covenant would be
terminated. On the other hand, there is likewise no express
statement of plaintiff's consent to that termination. On
the present record, therefore, the issue of whether plaintiff
intended to forgo its right to provision of steam heat by
defendant is a question of fact requiring resolution at trial
(see Jefpaul Garage Corp. v Presbyterian Hosp. in City of
NY, 61 N.Y.2d 442, 446 ).
defendant's promissory estoppel argument is also
preserved for review, it is unavailing to defendant. In order
to prevail on a theory of promissory estoppel, a party must
establish "(1) a promise that is sufficiently clear and
unambiguous; (2) reasonable reliance on the promise by a
party; and (3) injury caused by the reliance"
(MatlinPatterson ATA Holdings LLC v. Federal Express
Corp., 87 A.D.3d 836, 841-842 [1st Dept 2011], lv
denied 21 N.Y.3d 853');">21 N.Y.3d 853 ). Here, defendant did not
establish that plaintiff clearly and unambiguously promised
to terminate the agreement.
defendant's anticipatory repudiation argument, while
preserved for review, misses the mark. Anticipatory
repudiation occurs "when, before the time for
performance has arisen, a party to a contract declares [its]
intention not to fulfill a contractual duty" Kaplan
v Madison Park Group Owners, LLC, 94 A.D.3d 616, 618-619
[1st Dept 2012], lv dismissed19 N.Y.3d 1012');">19 N.Y.3d 1012 ,
lv denied20 N.Y.3d 858');">20 N.Y.3d 858 ). Here, there is no
record evidence that plaintiff declared its intention not to
perform its contractual duty to pay defendant for the