In this post-judgment matrimonial case, Plaintiff S. S. ("Plaintiff") seeks accumulated Cost of Living increases ("COLA" or "COLAS") with respect to maintenance payments previously paid to her by Defendant G. S. ("Defendant"). Such maintenance payments [*2]have been made by Defendant for over thirty years - - since the parties' Stipulation of Settlement was signed in 1983 - - but no payment has ever contained any cost of living increase. Plaintiff asserts that she is now entitled to over $374,000, exclusive of interest, representing accumulated increases. Defendant disagrees, and moves to dismiss Plaintiff's complaint. After several rounds of decisions and orders, a hearing was held. This decision is the product of that hearing. First, however, a brief summary of the factual and procedural background of this superannuated case is in order.

Factual and Procedural Background.

The parties were married on August 15, 1957 and have two emancipated children. In 1982, Plaintiff commenced an action for divorce. By agreement dated January 1, 1983 (the "Stipulation" or the "Agreement") the parties resolved all of the issues in their divorce action. The Judgment of Divorce was entered on September 16, 1983 (the "Judgment"), and the Stipulation was merged into the Judgment.

The Stipulation provided that the monthly maintenance payments to Plaintiff would be increased annually based upon a cost of living formula set forth in the Stipulation. It is undisputed that Defendant never made any of the increased COLA payments called for in the Stipulation; that is, for the past thirty years, no maintenance payment to Plaintiff has ever contained a cost of living increase. In October 2006, Plaintiff brought a post-judgment motion for contempt, seeking to punish Defendant for his failure to pay such COLAS and sought the assistance of the Court to collect them. By way of cross-motion, Defendant asked the Court to deny Plaintiff's motion because, although the Stipulation provided that its terms and provisions were to be incorporated in the Judgment of Divorce, the Judgment did not contain such a provision. After reviewing the cross-motion papers, Plaintiff brought a second motion before the Court seeking to resettle the Judgment so as to incorporate but not merge the Stipulation into it. Ultimately, the Court by Justice Anthony Scarpino denied Plaintiff's motion and relegated her to a plenary action to seek to collect the COLAS.

In compliance with Judge Scarpino's decision, Plaintiff commenced the instant plenary action on or about May 1, 2008. On or about January 7, 2009, Plaintiff served a Verified Complaint (the "Complaint") upon Defendant. In her Complaint, Plaintiff seeks monies totaling over $374,000, exclusive of interest, for Defendant's failure to pay her the COLAS as provided in the parties' Agreement.

Soon thereafter, in late April 2009, Defendant filed a pre-answer motion to dismiss the Complaint, which Plaintiff initially opposed. In a Decision and Order dated November 16, 2009, Judge Scarpino granted Defendant's motion on consent, but solely to the extent that Plaintiff was limited to a six-year statute of limitations period in seeking monetary relief under the Agreement (the "November 16 Order"). The motion was denied in all other respects and Defendant was directed to serve and file an answer. Defendant appealed, and the Appellate Division Second Department affirmed the November 16 Order in an opinion dated May 25, 2010.

In December 2009, Defendant served and filed a Verified Answer and interposed several affirmative defenses, including the defenses of laches , estoppel, and waiver. Discovery then proceeded. On or about April 30, 2010, Defendant served Plaintiff with a First set of Interrogatories (the "Interrogatories"). Plaintiff answered Defendant's Interrogatories on May 11, [*3]2010. Based upon Plaintiff's responses to his Interrogatories, Defendant moved to renew his motion to dismiss the Complaint. The Court, per Hon. Robert Neary, denied the motion and, once again, Defendant appealed. In affirming Judge Neary's order, the Appellate Division concluded that inconsistent factual assertions presented issues that could only be resolved at trial.

The Hearing.

To that end, a hearing was held on August 29, 2012 (the "Hearing"). As both parties agreed, the only issue extant at the time of the Hearing was the issue of waiver - - that is, whether Plaintiff had waived her right under the Agreement to receive the COLA increases. (Hearing Transcript, p. 4). Each of the parties testified on their respective behalf; no other witnesses were called. Before any testimony was adduced, the parties stipulated that Defendant never made any maintenance payments that included any cost of living increase as required by the terms of the Stipulation, but that he had made all base amount maintenance payments when due.

Hearing Testimony of Plaintiff.

Plaintiff testified that she had demanded that Defendant pay her the COLA increases on numerous occasions beginning in 1984. All such alleged demands were made orally. Her first demand was purportedly made in May 1984. According to Plaintiff, she told Defendant sometime that month that she was owed a cost of living increase with respect to her maintenance. His response: he was unable to pay it because, as Plaintiff related, he was "starting out on a new expanded business and the funds weren't available" (Tr. p. 10), but that he would pay her at some unspecified time in the future when "things got straightened out." (Id. at p. 13). Plaintiff further testified that she reiterated a similar oral demand approximately every year for over 10 years, and met the same response (Id., p. 12). Needless to say, no COLA was ever paid. Finally, in October 2006, she brought the aforementioned post-judgment matrimonial contempt motion based upon Defendant's failure to pay the COLAS - - a motion that ultimately resulted in the instant plenary action, as discussed above.

On cross-examination, Plaintiff conceded that she could not recall the date of any of the alleged oral demands, nor did she keep any contemporaneous written record of the date, the substance of her demands, or Defendant's respective responses to each of them (Tr. p. 42). Also during cross examination, Plaintiff was confronted with Defendant's Exhibit C, her 2010 sworn to Answers to Defendant's Interrogatories. In her Answer to Interrogatory 15, Plaintiff admitted that she consulted with an attorney in 1998 - - Margaret Clark, who Plaintiff knew to be a matrimonial lawyer (Tr. p. 39) - - yet failed to take any legal action against Defendant to recoup any COLAS until 2006. Moreover, during this entire period of 1984 until October 2006, Plaintiff continued to receive and accept her monthly maintenance payments, none of which contained any COLA increase (Tr. pp. 42-43).

Testimony of Defendant.

The testimony of Defendant was simple and straightforward: he testified that he never had any conversations with Plaintiff regarding COLA adjustments, and that no oral "demands" or "requests" upon him for COLAS as testified to by Plaintiff were ever made (Tr., p. 48, 51-52). Defendant's counsel also directed the Court's attention to the Intergatory Answers sworn to by Plaintiff in 2010. In her answers, Plaintiff conceded that she had "consulted with an [*4]attorney, Margaret Clark" and that "[a]fter this consultation, [Plaintiff] decided not to pursue the COLA adjustments." (Pl. Ans. to Interrg. 15, Deft's. Exh. C).

Findings of Fact and Conclusions.

Defendant's entire motion boils down to his contention that Plaintiff waived her right to the COLA increases. His argument has merit. The definition of waiver is clear and of longstanding: it is the voluntary relinquishment of a known right. As the New York Court of Appeals stated in the leading case of City of New York v. State of New York, 40 NY2d 659, 669 (1976) "A waiver is the relinquishment of a known right with both the acknowledgment of its existence and the intention to relinquish it,'" quoting Werking v. Amity Estates, 2 NY2d 43. See also, e.g., Davison v. Klaess, 280 NY 252 (1939).

The law is also clear that the basis for a waiver may be an act of commission or omission; that is, a party may expressly agree to waive his or her rights, or indicate that he or she is doing so by conduct or by a failure to act when action would reasonably be expected. See Hadden v. Consolidated Edison Co., 45 NY2d 446, 469 (1978) ("A waiver, the intentional relinquishment of a known right . . . may be accomplished by express agreement or by conduct or by failure to act so as to evince an intent not to claim the purported advantage."); General Motors Acceptance Corp., v. Clinton-Fine Cent. Sch. Dist., 85 NY2d 232 (2005); Simon & Son Upholstery, Inc. v. 601 West Associates, LLC, 268 AD2d 359 (1st Dept. 2000); Dice v. Inwood Hills Condominium, 237 AD2d 403 (2d Dept. 1997).

In the instant case, Plaintiff clearly knew that she had a right to periodic COLA increases in her maintenance payments. The Agreement, signed by her, plainly so provides. Moreover, Plaintiff testified that she demanded such increases from Defendant on a number of occasions, beginning in 1984. However, whether such conversations in fact occurred is questionable at best. Aside from the fact that Defendant, in his testimony, flatly denied that such conversations ever took place, Plaintiff's version of events has been contradicted by her own counsel. As Defendant points out his Reply Memorandum, Plaintiff's counsel indicated in a Memorandum of Law previously submitted to the Court in the context of Defendant's 2009 motion to dismiss the Complaint that, contrary to her testimony, Plaintiff had "simply neglected to enforce the cost of living adjustment" and had been "unaware of her cause of action until recently." (Deft's Reply Mem., p. 10, quoting Pl.'s Mem. of Law dated June 12, 2009). Clearly, had Plaintiff in fact made annual demands upon Defendant beginning in 1984 for such COLA increases, her failure to enforce her rights could not be reasonably characterized as "simple neglect", and she could not plausibly claim that she was "unaware of her cause of action." (Reply Mem., p. 10).

Even assuming arguendo that such demands were made and if made, were made in earnest - - despite the fact that no written contemporaneous record of them was adduced and Defendant denies that they were ever made - - Plaintiff's testimony nonetheless reaffirms that she knew that she had such rights, but took no meaningful steps to enforce then for over 22 years. Plaintiff's inaction, whatever the reason for it, passed the point of no return in 1998. According to her Interrogatory Answers, Plaintiff met that year with a matrimonial attorney, Margaret Clark. After that meeting and presumably armed with the appropriate legal advice, Plaintiff elected to forgo any action to enforce her rights to COLA increases under the Agreement. As Plaintiff's Answers to Interrogatories No. 13 and No. 15, sworn to in 2010, state in pertinent part: [*5]

"I first became aware that Defendant had not paid the COLA when the first COLAshould have been made, in May, 1984, pursuant to the Stipulation of Settlement.When I made oral demands of Defendant he responded that . . . . (he) also couldn'tafford to pay any COLA increase."

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"Approximately 12 years ago, [i.e., in or about 1998] I consulted with an attorney,Margaret Clark. After this consultation, I decided not to pursue the COLAadjustments." (Defendant's C.).

Put simply, Plaintiff's conduct presents a clear case of waiver: knowing that she had a right to COLA maintenance adjustments, she took no action whatsoever for over 14 years - - from 1984 until she met with Ms. Clark in 1998. Then, after meeting with an attorney, she made a conscious decision not to pursue enforcement for over eight years - - until 2006 - - thus effectively relinquishing her right to them. Parenthetically, the Court notes that Plaintiff's assertion that the topic of COLA increases was not the purpose of her meeting with Ms. Clark is of no moment. The fact remains that, as Plaintiff states in her Intergatory Answers and Hearing testimony, she met with a matrimonial attorney in 1998, and after such "consultation, [Plaintiff] decided not to pursue the COLA adjustments."

Moreover, as the case law reflects, a waiver once made is forever; the waiving party is not afforded the chance to change his or her mind. For this reason, courts are understandably reluctant to find that a waiver has occurred.However, once found, there is no turning back, and for good reason: the putative obligated party deserves, and the Courts favor, a final resolution of outstanding obligations lest they become open-ended invitations to litigation without end, with the obligor never certain of when the next shoe will drop. The case law reflects this judicial predilection in favor of finality. See, e.g., Simon & Son Upholstery, Inc. v. 601 West Associates LLC, 268 AD2d 359 (1st Dept. 2000) (Defendant landlord bound by implied waiver of restrictive lease clause by predecessor landlord); Kenyon & Kenyon v. Logany, LLC, 33 AD3d 538 (1st Dept. 2006); Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175 (1982); Hadden v. Consolidated Edison, 45 NY2d 460 (1978); General Motors Acceptance Corp., v. Clinton-Fine Cent. Sch. Dist., 85 NY2d 232 (2005).

Plaintiff attempts to evade the consequences of her studied inaction by invoking paragraph 6 of Article VII of the Agreement - - a paragraph described by Plaintiff as a "non-waiver clause," but bearing no such title in the Agreement itself. Article VII, Paragraph 6 provides as follows:

"The failure of either party to insist in one or more instances upon the strictperformance of any of the terms of this Agreement to be performed by the otherparty shall not be construed as a waiver or relinquishment for the future of any [*6]suchterm or terms, and the same shall continue in full force and effect. The terms of thisAgreement may not be changed orally, but only by an agreement in writing, signedand acknowledged by both parties."

(Stip., Pl. Exh. 1, p. 10).

However, Plaintiff's argument that this clause precludes a finding that Plaintiff relinquished her right to the COLA increases proves too much. Under Plaintiff interpretation, such a provision would prevent a court from ever finding a waiver, unless verified in writing, regardless of a party's conduct or the time period over which such action, or conscious inaction, took place. The law, however, is to the contrary. As case law indicates, where, as here, a party consciously decides, in the face of a known right, to forgo enforcement of it, waiver will be found even in the face of a contractual provision similar to the clause present here. That is, while a so-called non-waiver clause may well serve as a bulwark against an inadvertent failure to enforce a contractual right, or even a knowing failure to do so over a limited period of time, where, as in the instant case, a party decides after and over a significant period of time to refrain from taking enforcement action, the common law principle of waiver will prevail.

For example, in the First Department case of Simon & Son Upholstery, Inc. v. 601 West Associates, LLC, 268 AD2d 359 (1st Dept. 2000), the Court found that a contracting party's acquiescence in the face of conduct inconsistent with the contract's terms amounted to a waiver that effectively supplanted the original contractual obligation. In addition, despite the existence of a non-waiver clause, such revised contractual term applied to that party's successor in interest as well when it, with knowledge of the departure from the initial contractual requirement, did nothing to enforce the original written terms.

In Simon, plaintiff tenant entered into a lease with defendant's predecessor landlord in which the use of the leased premises was expressly limited to upholstery manufacturing. During the lease, plaintiff - - with the predecessor landlord's knowledge - - effectively converted the space to a photographic studio. The lease also contained non-waiver and merger clauses. Despite these contractual provisions, the Court held that since the predecessor landlord had knowledge of this non-prescribed use of the premises, and was actively involved in the modification of the leased space, the landlord had effectively waived the restrictive provisions of the lease. Moreover, such waiver was binding on the successor landlord under the lease - - the defendant. Distinguishing the principal case relied upon by Plaintiff herein - - Jefpaul Garage Corp. v. Presbyterian Hospital, 61 NY2d 442 (1984) - - the Court ruled that despite the presence of a contractual non-waiver and a merger clause, the actions of the parties had essentially revised their precise contractual obligation. As the Court stated,

"Since we find that the prior landlord had consented to the use of part of the premises fora photography studio, and since the record indicates that the new landlord, 601 WestAssociates, was aware of the ensuing partial conversion, plaintiffs are entitled to alimited injunction. We recognize that the lease contained nonwaiver and mergerclauses, but note that in this case the prior landlord was fully apprised and involved inthe photography studio [*7]modifications, including approving the renovations, providingtenant parking, accepting payments from the photography tenant, and using thepremises in a sales brochure. This active involvement is in stark contrast to thelandlord's passive acceptance of late rent payments in Jefpaul Garage Corp. v.Presbyterian Hosp. (61 NY2d 442). Here, in distinction to Jefpaul, there are sufficientindicia that the reasonable expectations of both parties under the original lease weresupplanted by subsequent actions." (Id. At 360; emphasis added).

Similarly, in Kenyon & Kenyon v. Logany, 33 AD3d 538-539 (1st Dept. 2006), plaintiff notified defendant orally - - not in writing as required under the lease's terms - - of its intention to exercise its option to lease additional space. In affirming the dismissal of defendant landlord's motion for summary judgment, the First Department held that defendant's failure to insist, for 10 months, upon the requisite written notice while acting in a manner consistent with the oral advice given to it by plaintiff amounted to a waiver of the written notice - - and this in the face of a "nonwaiver clause" contained in the lease. As the Court held,

"[P]laintiff orally confirmed to defendant that it was nonetheless ready to exercise itsoption to lease the entire additional sixth floor space. Defendant did not receive writtennotice to this effect, but its failure to insist on such notice for nearly 10 months afterreceiving plaintiff's oral notification, while acting as if it had accepted the oral exercise ofthe option, knowing plaintiff's action in reliance on defendant's conduct, constituted awaiver of any right to insist on written notice (see Pepe's Shamrock v. Vecchio, 128 AD2d599 [1987]; see also Siders v. Odak, 126 AD2d 292 [1987]). "[T]he existence of anonwaiver clause does not in itself preclude waiver of a contract clause" (Dice v. InwoodHills Condominium, 237 AD2d 403, 404 [1997]; see also Simon & Son Upholstery v. 601W. Assoc., 268 AD2d 359, 360 [2000])."

See also Dice v. Inwood Hills Condominium, 237 AD2d 403 (2d Dept. 1997); Nassau Trust

Co. v. Montrose Concrete Products, Corp., 56 NY2d 175 (1982).

In the instant case, as in Simon and Kenyon, Plaintiff knew that under the Stipulation, Defendant was bound to pay her COLA increases. Nonetheless, similar to defendant's predecessor in Simon and the defendant landlord in Kenyon, Plaintiff continued to accept payments without such increase, and without comment, for over 22 years, thus acting in a manner consistent with the contract effectively revised by conduct. And, similar to the predecessor landlord in Simon, Plaintiff herein was actively involved in the decision not to seek enforcement of her contractual rights when she "consulted with an attorney" (Intergatory Ans. 15) but nevertheless decided to do nothing. Thus, as in Simon and Kenyon, despite the presence of the self-styled "non-waiver clause", Plaintiff's conduct - - or lack thereof - - spoke volumes, [*8]and the actions of both Defendant in paying only the base amount of maintenance and Plaintiff in accepting such payments for 22 years without taking enforcement action, provided "sufficient indicia that the reasonable expectations of both parties" under the Stipulation "were supplanted by subsequent actions." (Simon & Son, 268 AD2d at 360).

Moreover, the case upon which Plaintiff principally relies - - Jefpaul Garage Corp. V. Presbyterian Hospital, 61 NY2d 442 (1984) - - is not to the contrary. In that case, the putative waiving party merely delayed in acting. Conversely, here as in Kenyon and Simon, more than mere inaction or inadvertenence by Plaintiff occurred. Significant time not only passed - - a prerequisite to establish waiver - - but Plaintiff affirmatively chose not to pursue her remedies, as evidenced by her decision, even after consulting with counsel, to do nothing.

Conclusion

For all the foregoing reasons, Defendant's motion to dismiss is granted, and Plaintiff's complaint is dismissed in its entirety, each party to bear his or her own fees and costs.

The foregoing constitutes the Decision and Order of this Court.

Dated: November 4, 2013

White Plains, New York

Hon. John P. Colangelo

Acting Supreme Court Justice