author: Chief Judge Cooke.

text:
    Rafael A. Quevedo et al., Plaintiffs, v City of New York et al., Defendants. V and A Oil Burner Service, Inc., Third-Party Plaintiff, v DRE Maintenance Corp. et al., Third-Party Defendants. City of New York, Third-Party Plaintiff-Respondent, v DRE Maintenance Corp. et al., Third-Party Defendants, and Berley Industries, Inc., Third-Party Defendant-Appellant.
    Argued March 31, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      Herbert Rubin, Edward L. Birnbaum and David B. Hamm for third-party defendant-appellant.
    I. Properly interpreted to reflect the public policy articulated by the Legislature, section 5-322.1 of the General Obligations Law mandates a reversal of the order appealed from. The indemnification clause at issue is contrary to public policy and is void and unenforceable. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Board of Educ. v Valden Assoc., 60 AD2d 617, 46 NY2d 653; Cenven, Inc. v Bethlehem Steel Corp., 51 AD2d 955, 41 NY2d 842; Brentano’s, Inc. v Charter Mgt. Corp., 46 AD2d 861; 614 Third Ave. Corp. v Grand Iron Works, 44 AD2d 531; Kirshenbaum v General Outdoor Adv. Co., 258 NY 489; Berardi v Getty Refining & Marketing Co., 107 Misc 2d 451; Schiff Assoc. v Flack, 73 AD2d 329, 51 NY2d 692.) II. None of the arguments raised by the City, for the first time, at the court below can withstand analysis. Section 5-322.1 of the General Obligations Law is fully applicable to the indemnification clause at issue, and bars its enforcement as against Berley. (Farr v Newman, 14 NY2d 183; Gerr v Weissberg, 62 AD2d 931, 47 NY2d 730; Modern Sheet Metal Supply Co. v Wolf, 61 AD2d 966; Levine v Shell Oil Co., 28 NY2d 205; Martin v Maintenance Co., 588 F2d 355; Gibbs v United States, 599 F2d 36; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Leaseway of Cent. N. Y. v Climax Mfg. Co., 81 AD2d 1038, 54 NY2d 822; Berardi v Getty Refining & Marketing Co., 107 Misc 2d 451.) III. The failure of the City, or one of its agencies, to notify the insurance carrier of the accident and claim for indemnification until the very eve of trial nullifies the insurance policy. Pursuant to the agreement between Berley and the City, notification by Berley was insufficient. (Security Mut. Ins. Co. of N. Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Deso v London & Lancashire Inds. Co., 3 NY2d 127; Kason v City of New York, 83 Misc 2d 810; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Debbie E. Sreter and Ronald E. Sternberg of counsel), for third-party plaintiff-respondent.
    I. Enforcement of the indemnification clause at issue against Berley is not barred by section 5-322.1 of the General Obligations Law. (Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Cenven, Inc. v Bethlehem Steel Corp., 51 AD2d 955, 41 NY2d 842; Porter v Avlis Contr. Corp., 86 Misc 2d 235, 57 AD2d 222; Randall v Board of Higher Educ., 78 AD2d 516; Jarecki v Searle & Co., 367 US 303; Vey v Port Auth. of N. Y. & N. J., 54 NY2d 221; Margolin v New York Life Ins. Co., 32 NY2d 149; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Rosenbaum v Lefrak Corp., 80 AD2d 337; April v Sovereign Constr. Co., 79 AD2d 693.) II. Trial Term properly concluded that notice by Berley alone to its insurance carrier was sufficient to fulfill the notice requirement in the contract. (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16; Breed v Insurance Co. of North Amer., 46 NY2d 351.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question on this appeal is whether a clause in a building maintenance contract requiring the contractor to indemnify the building owner for all liability arising out of or in connection with the contract is unenforceable under former section 5-322.1 of the General Obligations Law (amd L 1981, ch 964). Such a clause is unenforceable under that statute only to the extent that the clause provides indemnification for liability for damages caused by the indemnitee’s sole negligence.

Plaintiff Raphael A. Quevedo was injured when the boiler in a building owned by defendant City of New York (City) exploded. Quevedo was employed by third-party defendant Berley Industries, Inc., the contractor secured by the City to provide janitorial and maintenance services to certain buildings owned by the City. Quevedo and his wife commenced an action against the City and V and A Oil Burner Services, Inc., the contractor responsible for boiler repairs, to recover for personal injuries and loss of consortium. Plaintiffs alleged the City’s and V and A’s negligence in maintenance of the boiler. The City answered, asserting Quevedo’s culpable conduct as an affirmative defense. The City also asserted a cross claim against V and A and commenced a third-party action for common-law and contractual indemnification against Berley and DRE Maintenance Corp., a company created to administer Berley’s payroll.

Following jury selection, the parties agreed to a settlement under which plaintiff would receive $108,000; the City, Berley and V and A were each to contribute $36,000. Thereafter, all claims were discontinued except the City’s claim for contractual indemnification against Berley.

The City continued to press that claim, moving for an order enforcing the indemnification clause in its building maintenance contract with Berley. That clause provides that Berley “shall indemnify and hold harmless the City, [the City’s Department of] Real Estate, its servants, agents and employees against the risk of loss, damage or liability caused by personal injuries, wrongful death and loss of or damage to property arising out of or in connection with the performance of the order, whether sustained before or after the completion thereof. Such risk shall include all liability of [the City’s Department of] Real Estate, whether an active primary duty is imposed upon it by law or not. The Contractor agrees to defend all suits, negotiate all claims and pay all judgments, costs, expenses and fees resulting therefrom.” The contract also required Berley to obtain an insurance policy to include coverage for the contractual indemnification and the following provision: “NOTICE OF ACCIDENT OR CLAIM. Notice of accident shall be given to the [insurance] Company within sixty (60) days after notice to [the City’s Department of] Real Estate of such accident, or notice of claim shall be given to the Company within sixty (60) days after such claim shall have been filed with the Comptroller of the City of New York. Notice to the company by either party shall be deemed sufficient notice under the policy.” Berley had obtained the required insurance.

In opposition to the motion, Berley argued that the indemnification clause was void and unenforceable under section 5-322.1 of the General Obligations Law inasmuch as it required Berley to indemnify the City against its own negligence. Berley argued alternatively that the City should be estopped from enforcing the clause because the City’s notification to the insurer of the accident or claim for indemnification came on the eve of trial and was thus untimely under the notice provision of the contract.

Supreme Court granted the City’s motion and issued an order for enforcement. Supreme Court agreed with Berley that the indemnification clause purports to hold the City harmless for injuries caused solely by the City’s own negligence and concluded that the clause would appear to be invalid under section 5-322.1 of the General Obligations Law. The court ruled, however, that the existence of insurance, procured by Berley as a condition of the maintenance contract, effectively rendered enforceable the otherwise void clause under the statutory proviso that the section “shall not affect the validity of any insurance contract.”

On appeal, the Appellate Division affirmed the order of Supreme Court, without opinion, and then granted leave to appeal to this court. There should be an affirmance.

As it did below, Berley maintains that section 5-322.1 of the General Obligations Law renders wholly unenforceable the clause under which the City seeks indemnification. The prohibition in that section, however, does not reach that far.

Prior to the recent amendment (L 1981, ch 964), section 5-322.1 provided that a promise “in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building structure, appurtenances and appliances * * * purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons * * * caused by or resulting from the sole negligence of the promisee * * * is against public policy and is void and unenforceable” (subd 1 [emphasis added]). In enacting this section, the Legislature sought to prevent the practice of requiring contractors or subcontractors to assume liability for the negligence of others, thereby increasing their insurance costs and thus the costs of construction (see NY Legis Ann, 1975, p 311). The Legislature, however, unambiguously proscribed only those clauses that purport to indemnify the promisee against “the sole negligence of the promisee”. In contrast to the amended section, nothing in former section 5-322.1 suggests that agreements providing for indemnification against the promisee’s negligence in cases of joint fault are to be considered unenforceable (see Vey v Port Auth. of N. Y. & N. J., 79 AD2d 920, mod 54 NY2d 221).

There is no real dispute that the clause at issue requires Berley to indemnify the City even when the injury is caused solely by the City’s negligence. The clause, however, also requires indemnification where there is joint fault. As noted, such an allocation of responsibility is not proscribed and the statutory bar need not invalidate the agreement in toto (cf. Central N. Y. Tel. & Tel. Co. v Averill, 199 NY 128, 140). Rather, former section 5-322.1 renders the indemnification clause unenforceable only to the extent that it purports to indemnify the City against liability caused by “the sole negligence” of the City (see County of Onondaga v Penetryn Systems, 56 NY2d 726, affg for reasons stated in mem at 84 AD2d 934).

There has been no showing that the statutory prohibition applies in this case. The main action was settled prior to trial. As part of the settlement, Berley, the City and V and A Oil Burner Services each agreed to contribute equally. There has been neither a determination nor admission of fault by any party (see Smith v Satterlee, 130 NY 677, 679; Richardson, Evidence [10th ed — Prince], § 225). The record simply does not demonstrate that plaintiff’s injuries were “caused by or resulted] from the sole negligence” of the City. Inasmuch as the clause is unenforceable only in that event, there is no basis here for denying enforcement.

Nor can Berley avoid liability by asserting the City’s failure to give timely notice of plaintiff’s claim to the insurer. The contract requires Berley to obtain insurance but expressly provides that “[njotice to the company by either party shall be deemed sufficient notice under the policy.” There is no claim that the insurer did not receive timely notice from Berley.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . As amended, section 5-322.1 proscribes certain agreements purporting to indemnify the promisee against liability for damage caused by the negligence of the promisee in whole or in part: “A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to. caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable: provided that this section shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by an admitted insurer. This subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisee is partially negligent."

      . In view of our disposition we do not reach the City’s argument that section 5-322.1 does not apply to a building maintenance contract inasmuch as this contract is a management contract rather than a maintenance contract.

      . Contrary to the determination at Supreme Court, the existence of insurance would not save an indemnification clause otherwise unenforceable under section 5-322.1. The proviso that the section “shall not affect the validity of any insurance contract, workmen's compensation agreement or other agreement issued by an admitted insurer” (General Obligations Law, § 5-322.1, subd 1) merely ensures that the contractor will not lose insurance coverage simply because the coverage may extend to liability sought to be imposed under an unenforceable agreement.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of Bradford Central School District, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued March 26, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      Robert H. Plaskov for appellant.
    I. Appellant school district has standing to challenge the actions of respondent, Ambach. (Matter of Dairylea Coop. u Walkley, 38 NY2d 6; Matter of Fritz v Huntington Hosp., 39 NY2d 339; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Jerry v Board of Educ., 35 NY2d 534; Board of Educ. v Areman, 41 NY2d 527; Board of Educ. v Gootnick, 49 NY2d 683; Board of Educ. v Allen, 20 NY2d 109.) II. The commissioner may not ignore his own regulations. (Matter of Severino v Ingraham, 59 AD2d 587, 44 NY2d 763; Matter of Lawson v Cornelius, 35 Misc 2d 816; Smith v Resor, 406 F2d 141.)

      Paul E. Sherman, Jr., Robert D. Stone and Jean M. Coon for Gordon M. Ambach, respondent.
    I. The court below was correct when it found that the Commissioner of Education was authorized to accept seven years of continuous, full-time, paid service in the district and the granting of tenure in lieu of the stated requirements when he granted Statewide teaching certification to appellee Yanch. (Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Board of Educ. v Allen, 45 Misc 2d 981; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Rochester Tel. Corp. v United States, 307 US 125; Matter of Howard v Wyman, 28 NY2d 434; Matter of Greene v Goodwin, 46 AD2d 69.) II. The court below was correct when it determined that the Bradford Central School District lacked standing to challenge the commissioner’s grant of teaching certification to appellee Yanch. (Matter of Dairylea Coop. v. Walkley, 38 NY2d 6.)

      Robert D. Clearfield for Gerrie A. Yanch, respondent.
    I. Appellant in this proceeding has no standing to challenge the authority of the Commissioner of Education to grant or deny certification to respondent Yanch. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of Meliti v Nyquist, 41 NY2d 183; Board of Educ. v Gootnick, 49 NY2d 683.) II. The court below was correct in ruling that the decision of the Commissioner of Education to grant certification to Yanch had a rational basis. (Matter of Mugavin v Nyquist, 48 AD2d 727, 39 NY2d 1003; Matter of McCarthy v Board of Educ., 43 AD2d 815; James v Board of Educ., 42 NY2d 357; Donahue v Copiague Union Free School Dist., 64 AD2d 29; Matter of Board of Educ. v Nyquist, 60 Misc 2d 967; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 41 AD2d 1003, 38 NY2d 137.)

      Henry F. Sobota for New York State School Boards Association, Inc., amicus curiae.

    I. A school district which seeks to dismiss a tenured teacher for incompetence has standing to review the State Education Department’s illegal issuance of a certificate to such teacher. (Matter of Meliti v Nyquist, 41 NY2d 183; Baker v Carr, 369 US 186; Boryszewski v Brydges, 37 NY2d 361; Matter of 609 Holding Corp. v McGoldrick, 204 Mise 26; Matter of Rankin v Lavine, 41 NY2d 911; Data Processing Serv. v Camp, 397 US 150; Columbia Gas of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Gillis v Space, 63 Barb 177; Board of Educ. v Areman, 41 NY2d 527.) II. The commissioner violated his own rule when he issued a permanent certificate to respondent teacher herein. (Matter of Calvi v Dumpson, 42 NY2d 1032.)
   OPINION OF THE COURT

Jasen, J.

The question raised by this appeal is whether the Commissioner of Education acted in excess of his statutory authority when he granted a permanent teaching certificate to an employee of petitioner, Bradford Central School District. Before reaching that substantive issue, a threshold procedural question must be addressed. That question is whether the school district, as employer, has standing to challenge the commissioner’s determination.

The facts of this case are not in dispute. Since the fall of 1972, respondent Gerrie A. Yanch has been employed as a music teacher by the Bradford Central School District. She was granted tenure at the end of her three-year probationary period. Although her supervisors had expressed dissatisfaction with her work in recent years, no formal charges were pending against her at the time this dispute over the status of her certification arose.

In July of 1979, school officials realized their records did not indicate that Yanch had ever received permanent certification from the Commissioner of Education. Therefore, they requested verification of her status from the commissioner. At the same time, Yanch applied for permanent certification from the commissioner.

The commissioner notified Yanch that she did not qualify for permanent certification because her training did not include student teaching experience, but that one year of paid full-time teaching experience could be substituted for that requirement on the recommendation of the administrator of the employing school district. The superintendent of the Bradford Central Schools refused to give Yanch the required recommendation despite her seven years of teaching experience in that district. She then requested that the commissioner waive the recommendation requirement. The commissioner determined that the superintendent of the school district was unreasonably withholding his recommendation; that “fair and equitable treatment” required that the student teaching requirement be waived for a teacher employed seven years by the same school district; and that Yanch was entitled to permanent certification.

The school district commenced this article 78 proceeding seeking to annul the commissioner’s determination on the ground that it was arbitrary and capricious because the commissioner lacks the authority to waive any requirement imposed by regulation. The applicable regulation allows “[o]ne year of paid, full-time teaching experience” to be accepted as a substitute for the student teaching experience “when such experience carries the recommendation of the employing school district administrator.” (8 NYCRR 80.17 [c].) Petitioner argues that without specific authorization from the Board of Regents allowing the commissioner to waive such requirements, he is bound to strictly adhere to the dictates of the regulations.

Trial court agreed with petitioner’s arguments and annulled the determination of the Commissioner of Education on the ground that he was bound by the requirements of the regulation. Prior to reaching the substantive issue, the trial court found that the board of education was more than a “concerned bystander” and did have standing to challenge the commissioner’s determination. Citing the school board’s statutory obligation to employ only qualified teachers (Education Law, § 1709, subd 16; § 3010), the court described the commissioner’s determination as one which “directly and immediately affects matters which are the legitimate concern of the Board of Education.”

The Appellate Division reversed and dismissed the petition on the ground that the school board did not have standing because it was not aggrieved by the commissioner’s determination. Furthermore, the court noted that questions of certification relate to a person’s “right to be licensed generally * * * and does not directly concern the district in its employer-employee relationship”.

We now hold the board of education, as employer of the teacher granted permanent certification, has standing to challenge the commissioner’s determination, and we further hold that the determination of the commissi oner should be upheld. Since we reach the same result as the Appellate Division, but for different reasons, the order of the Appellate Division dismissing the petition brought by the Bradford Central School District should be affirmed.

A school board is responsible for insuring that only qualified persons, as defined by sections 3001 and 3006 of the Education Law and the regulations promulgated thereunder, are employed to teach. A teacher who is not certified by the State is unqualified as a matter of law and cannot be employed or paid by a public school board of education. (Education Law, §§3001, 3010.) Thus, to have retained respondent Yanch as a teacher if in fact she was not certified would have meant that the school board was violating its statutory duty to hire only qualified teachers. The individual members of the school board would have been subject to both civil and criminal sanctions for breaching that duty. (Education Law, § 3010.) A board of education, therefore, as a teacher’s employer, has a legitimate interest in determining whether or not a teacher is properly certified.

That interest in hiring qualified teachers means that the board of education comes within the “zone of interest” necessary to establish standing. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9.) But in determining standing, it is also necessary to “carefully examin[e] the relevant statutes and precedents, [to ascertain] the presence or absence of a legislative intention to preclude review.” (Matter of Dairylea Coop. v Walkley, supra, at p 11.) In this case, there is no indication that the Legislature intended to preclude in any way school boards from seeking judicial review of decisions rendered by the Commissioner of Education. Indeed, the responsibility imposed on school boards and their individual members to hire only qualified teachers indicates otherwise.

The final requirement to establish standing is that the petitioner show “that the administrative action will * * * have a harmful effect on the petitioner.” (Matter of Dairylea Coop. v Walkley, supra, at p 9.) In this case, the injury arises by virtue of the commissioner’s interpretation of this regulation. The wording of the regulation indicates that school boards, through their administrators, are to have an input in determining whether the student teaching requirement should be waived. When the commissioner interprets his regulations, as he did in this case, in a manner which arguably interferes with the discretion granted by those regulations to local school boards, there is sufficient injury to justify conferring standing.

Furthermore, it is proper to grant standing in this case under the reasoning of Boryszewski v Brydges (37 NY2d 361). As in that case, a “failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny.” (Boryszewski v Brydges, supra, at p 364.) In a case such as this, if the board of education does not bring an action to review the Commissioner of Education’s determination awarding a teacher permanent certification, no judicial scrutiny of that determination will be available. Clearly, the other concerned parties — the teacher and the Commissioner of Education — will not seek a review of the commissioner’s determination.

Having thus determined that the board of education does have standing, we cannot agree with the board’s contention that the commissioner abused his discretion by waiving the requirement of a recommendation and granting this teacher permanent certification. Although the applicable regulation indicates that a recommendation from the employing school district administrator must be obtained before one year’s teaching experience will be substituted for student teaching, it was within the discretion of the Commissioner of Education to waive that requirement. It was uncontroverted that this teacher had taught this subject for seven years and had been granted tenure by the Bradford Central School District. It was thus reasonable for the commissioner to determine that the school district officials were unreasonably withholding their recommendation and that “fair and equitable treatment” required him to grant respondent Yanch permanent certification.

The Commissioner of Education is authorized by section 3004 of the Education Law to prescribe regulations, with the approval of the Board of Regents, governing certification of teachers and to award certification to those meeting the requirements. He is also charged with the duty of enforcing all laws related to education in the State and executing educational policy. (Education Law, § 305.) In carrying out those duties, it is within the commissioner’s authority to reasonably interpret the regulations promulgated by him with the approval of the Board of Regents. The commissioner’s discretion in interpreting these regulations is required to be rational and must, of course, comport with the intent of those regulations. It cannot be said, as a matter of law, that, on the facts of this case, the commissioner’s determination that respondent Yanch had met the requirements for permanent certification was either irrational or in violation of the intent of the regulation. It was clear this tenured teacher who had taught for seven years in the same district had completed at least one year’s paid full-time teaching experience. The commissioner properly determined that the regulation’s requirement of a recommendation was satisfied by proof that the school district had granted her tenure.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur; Judges Gabrielli and Meyer taking no part.

Order affirmed.


text:
    Donald Eschbach, Appellant, v Rita Eschbach, Respondent.
    Argued March 29, 1982;
    decided May 13, 1982

      POINTS OF COUNSEL

      Herbert J. Malach and Robert G. Schneider for appellant.
    I. The trial court had sufficient evidence to transfer custody of Laura to the father and that finding should not have been disturbed. (Matter of Darlene T., 28 NY2d 391; Matter of Ray A. M., 37 NY2d 619; Matter of Jewish Child Care Assn. of N. Y., 5 NY2d 222; People ex rel. Portnoy v Strasser, 303 NY 539; Bunim v Bunim, 298 NY 391; Matter of Ebert v Ebert, 38 NY2d 700; Matter of Irene O., 38 NY2d 776; Bistany v Bistany, 66 AD2d 1026; Kesseler v Kesseler, 10 NY2d 445; Aberbach v Aberbach, 33 NY2d 592.) II. It was error for the court below to separate Laura from her two sisters and this was clearly not in Laura’s best interests. (Matter of Ebert v Ebert, 38 NY2d 700; Obey v Degling, 37 NY2d 768; Bistany v Bistany, 66 AD2d 1026; Aberbach v Aberbach, 33 NY2d 592; Lucey v Lucey, 60 AD2d 757.) III. The decision of the trial court specifically found the mother to be unfit and less fit than the father which would warrant a change of custody of Laura. (People ex rel. Sibley v Sheppard, 54 NY2d 320; Aberbach v Aberbach, 33 NY2d 592; Martin v Martin, 74 AD2d 419; Kuleszo v Kuleszo, 59 AD2d 1059; Matter of Goho v Goho, 59 AD2d 1045.)

      Edward D. Loughman, Jr., for respondent.
    I. In contrast to appellant’s distortion of the record, not a shred of evidence shows respondent to be an unfit mother of Laura. (Matter of Henson, 77 Misc 2d 694; Sandman v Sandman,

      64 AD2d 698; Porges v Porges, 63 AD2d 712; People ex rel. Repetti v Repetti, 50 AD2d 913; Matter of Darlene T., 28 NY2d 391; Bunim v Bunim, 298 NY 391; Matter of Ray A.M., 37 NY2d 619; Matter of Susanne U. NN v Rudolf OO, 57 AD2d 653, affd sub nom. Matter of Nehra v Uhlar, 43 NY2d 242.) II., Appellant’s failure to prove Mrs. Eschbach an unfit mother of Laura required continuation of custody in her mother. (Matter of Nehra v Uhlar, 43 NY2d 242; Corradino v Corradino, 48 NY2d 894; Sandman v Sandman, 64 AD2d 698; Porges v Porges, 63 AD2d 712; Mullins v Mullins, 76 AD2d 914; Bistany v Bistany, 66 AD2d 1026; People ex rl. Selbert v Selbert, 60 AD2d 692; People ex rel. Repetti v Repetti, 50 AD2d 913; Obey v Degling, 37 NY2d 768.)
   OPINION OF THE COURT

Jasen, J.

The question to be resolved on this appeal is whether custody of the youngest child of the parties herein should be changed, along with that of her two older sisters, from her mother to her father.

Plaintiff, Donald Eschbach, and defendant, Rita Eschbach, were married on November 23, 1963. Donald Eschbach was granted a divorce on May 28,1979 on the basis of the couple having lived separate and apart pursuant to a separation agreement for one year. (Domestic Relations Law, § 170, subd [5].) Custody of the three daughters of the marriage was granted to their mother pursuant to an oral stipulation of the parties entered in the minutes of the court at the inquest hearing held on January 16,1979. The stipulation, which also provided visitation rights for the children’s father, was incorporated but not merged in the judgment of divorce.

Events over the course of the next year indicated a progressive deterioration in the mother’s relationship with her daughters. On several occasions, the two older girls, Karen and Ellen, ran away from defendant’s home, either to their father’s residence or to friends’ homes. The record also reveals that the mother refused to allow the girls to participate in extracurricular activities at school and imposed severe limitations on what activities they could participate in and with whom they were allowed to associate. Concerned that the children were being raised in an unhealthy atmosphere which was affecting their emotional and psychological development, the father commenced this action seeking a modification of the judgment of divorce to the extent of awarding him custody of his three daughters.

The trial court took testimony from both parents, representatives of the school, and the two older daughters. Although the youngest daughter, Laura, did not testify, she was interviewed by the court in camera, and a transcript of that proceeding is included in the record before us. Additionally, a report was prepared for the court by a probation officer who had interviewed the parties.

The trial court found that the mother’s unreasonable demands and restrictions were jeopardizing the older daughters’ emotional and intellectual -development and that there was a total breakdown of communication between the older children and their mother. Furthermore, the court found that the strong prefrence to live with their father expressed by these children, who were' age 16 and 14 at the time of the hearing, should be given consideration.

Although Laura, who was 10 at the time of the hearing, had not expressed a similarly strong preference to live with her father rather than her mother, the court recognized her strong desire to remain with her sisters. After considering all the factors presented, the court found that her best interests would be served by continuing her close relationship with her sisters and that a change of custody to her father was necessary under these circumstances.

On appeal, the Appellate Division agreed that “the antagonism [of the older] children * * * toward defendant and their strong preference to live with plaintiff” (83 AD2d 845, 846) required a change in custody for Karen and Ellen. That court, however, modified the judgment and ordered that Laura’s custody remain with the mother because there was “nothing to suggest that defendant has been anything but a fit parent toward her.” (Id.)

On this appeal, the father seeks custody of Laura. The mother has not sought a further appeal from that part of the order which affirmed the judgment awarding custody of Karen and Ellen to the plaintiff. The question on this appeal is thus limited to which parent should have custody of Laura. We agree with the trial court that Laura’s best interests require a change in her custody from her mother to her father.

Any court in considering questions of child custody must make every effort to determine “what is for the best interest of the child, and what will best promote its welfare and happiness”. (Domestic Relations Law, § 70; Matter of Ebert v Ebert, 38 NY2d 700, 702; Obey v Degling, 37 NY2d 768, 769; Matter of Lincoln v Lincoln, 24 NY2d 270; Bistany v Bistany, 66 AD2d 1026; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705; Matter of Saunders v Saunders, 60 AD2d 701.) As we have recently stated, there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child. (Friederwitzer v Friederwitzer, 55 NY2d 89, 93-95.)

Where the parties have entered into an agreement as to which parent should have custody, we have stated that “[pjriority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded” to that agreement. (Matter of Nehra v Uhlar, 43 NY2d 242, 251.) This priority is afforded the first determination of custody in the belief the stability this policy will assure in the child’s life is in the child’s best interests. (Friederwitzer v Friederwitzer, supra, at p 94; Corradino v Corradino, 48 NY2d 894; Matter of Nehra v Uhlar, supra; Obey v Degling, supra; Dintruff v McGreevy, 34 NY2d 887; Aberbach v Aberbach, 33 NY2d 592; People ex rel. Selbert v Selbert, 60 AD2d 692.) But as this court noted in Friederwitzer, “[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interests (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 NY2d 660).” (Friederwitzer v Friederwitzer, supra, at p 95.) Thus, an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted.

The weight to be given the existence of a prior agreement depends on whether the prior disposition resulted from a full hearing by a trial court or was merely incorporated in the court’s judgment pursuant to an uncontested stipulation. (Friederwitzer v Friederwitzer, supra, at pp 94-95.) This is particularly true where, as in this case, the rules of the court require that the decree specify that “as to support, custody and visitation, no such agreement or stipulation is binding” (22 NYCRR 699.9 [f] [4]) and that the court retains jurisdiction for the purpose of making such further custody decree “as it finds appropriate under the circumstances existing at the time application for that purpose is made to it”. (22 NYCRR 699.9, Approved Forms, J13.) Since the court was not bound by the existence of the prior agreement, it has the discretion to order custody changed “when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.” (Friederwitzer v Friederwitzer, supra, at p 96.)

Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child. (Matter of Ebert v Ebert, 38 NY2d 700, 702, supra; Bistany v Bistany, 66 AD2d 1026, supra; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705, supra; Matter of Saunders v Saunders, 60 AD2d 701, supra.) While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child’s emotional and intellectual development. (Sandman v Sandman, supra; Porges v Porges, 63 AD2d 712; Matter of Saunders v Saunders, supra.)

In determining whether the custodial parent can continue to provide for the child’s various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communication between a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children. (Bistany v Bistany, supra; Sandman v Sandman, supra; Porges v Porges, supra.) To this end, it is important for the court to consider the desires of each child. But again, this is but one factor to be considered; as with the other factors, the child’s desires should not be considered determinative. (Matter of Ebert v Ebert, supra, at p 702; Obey v Degling, 37 NY2d 768, 770, supra; Dintruff v McGreevy, 34 NY2d 887, 888, supra; Sandman v Sandman, supra.) While not determinative, the child’s expressed preference is some indication of what is in the child’s best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. (See, e.g., Obey v Degling, supra, at p 770; Dintruff v McGreevy, supra, at p 888.)

Finally, this court has long recognized that it is often in the child’s best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. “Close familial relationships are much to be encouraged.” (Matter of Ebert v Ebert, supra, at p 704.) “Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.” (Obey v Degling, supra, at p 771; Matter of Gunderud v Gunderud, 75 AD2d 691; Bistany v Bistany, supra.)

The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. “In matters of this character ‘the findings of the nisi prius court must be accorded the greatest respect’ (Matter of Irene O., 38 NY2d 776, 777)” (Matter of Ebert v Ebert, supra, at p 703; Bistany v Bistany, supra). Appellate courts should be reluctant to substitute their own evaluation of these subjective factors for that of the nisi prius court (People ex rel. Portnoy v Strasser, 303 NY 539, 542; Bistany v Bistany, supra), and if they do, should articulate the reasons for so doing. Similarly, the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. (Friederwitzer v Friederwitzer, 55 NY2d 89, supra.)

Turning then to the facts of this case, we hold that the determination of the trial court that the totality of the circumstances warrants awarding custody of Laura to her father conforms to the weight of the evidence. The record indicates that although the mother is not an unfit parent for Laura, she is, under all the circumstances present here, the less fit parent. Thus, the trial court was not bound by the stipulation of the parties-, but was free to, and indeed required to, review the totality of the circumstances to determine what would be in Laura’s best interests. In doing so, the Trial Judge weighed the testimony of all the parties, including Laura, and considered the testimony of school officials and reports from a probation officer appointed by the court. The court made no specific finding that defendant was an unfit mother for Laura, but a finding that the mother was the less fit parent is implicit in its order to change custody and is supported by the record. Additionally, the trial court, while noting Laura’s ambivalence as to which parent she would prefer to live with, gave significant weight to her strong desire to remain with her older sisters. The record indicates that all relevant factors, including the mother’s ability to cope with raising children as they approach maturity and the father’s desire to- provide a fuller and more enriched environment for his daughters were considered. It is abundantly clear from the record that the trial court, in this case, made a careful and studied review of all the relevant factors. As the determination of the nisi prius court, we believe this holding should be accorded great deference on review.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Westchester County, reinstated.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.


author:
Meyer, J.
      Jasen, J.

text:
    Nassau Trust Company, Respondent, v Montrose Concrete Products Corp., Appellant, et al., Defendants.
    Argued February 16, 1982;
    decided May 13, 1982

      POINTS OF COUNSEL

      Carter B. Simpson and Terence F. Gilheany for appellants.
    I. The court below failed to apply the proper legal standards in striking defendants’ affirmative defenses and in granting summary judgment to the bank. (Krantz v Garmise, 13 AD2d 426; Rosenstiel v Rosenstiel, 20 AD2d 71; Colella v Mahoney, 42 AD2d 773; Potter v Thomashow, 271 App Div 878; Veerhoff v Miller, 30 App Div 355; Station Improvement Corp. v Wychwood Holding Corp., 141 Misc 794; Ferlazzo v Riley, 278 NY 289; Wedab Corp. v Weinger, 283 App Div 877; Rotuba Extruders v Ceppos, 46 NY2d 223; Moskowitz v Garlock, 23 AD 2d 943.) II. Defendants have demonstrated that the bank and Montrose entered into a valid contract, whereby the bank agreed to forbear from instituting this foreclosure proceeding for a stated period of time. (Colella v Mahoney, 42 AD2d 773; Potter v Thomashow, 271 App Div 878; Veerhoff v Miller, 30 App Div 355; Station Improvement Corp. v Wychwood Holding Corp., 141 Misc 794; Strobe v Netherland Co., 245 App Div 573; Weiss v Weiss, 266 App Div 801; Richman v Brookhaven Servicing Corp., 80 Misc 2d 563; Mencher v Weiss, 306 NY 1.) III. The uncontroverted facts of record establish that the bank has waived its right to foreclosure. (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34; Carfi v De Martino, 181 Misc 428; Matter of Sullivan v Taylor, 254 App Div 766, 279 NY 364; Arnot v Union Salt Co., 186 NY 501; Imperator Realty Co. v Tull, 228 NY 447; Veerhoff v Miller, 30 App Div 355.) IV. The uncontroverted facts of record establish that the bank is estopped from prosecuting this foreclosure proceeding. (Citibank [New York State] v Zibro Tire & Appliance Co., 72 AD2d 846; Royce v Rymkevitch, 29 AD2d 1029; Gray v Met Contr. Corp., 4 AD2d 495; Imperator Realty Co. v Tull, 228 NY 447; Marine Midland Bank — Western v Center ofWilliamsville, 48 AD2d 764; Witherell v Kelly, 195 App Div 227.) V. The uncontroverted facts of record establish that to permit resort to the equitable remedy of foreclosure would be unconscionable in the present case. (Bieber v Goldberg, 133 App Div 207; Federal Nat. Mtge. Assn. v Ricks, 83 Misc 2d 814; Domus Realty Corp. v 3440 Realty Co., 179 Misc 749, 266 App Div 725; Berman v Blooming Farms Joint Venture, 50 AD2d 558; Kaplan v 2108-2116 Walton Ave. Realty Co., 66 AD2d 668.) VI. Since the counterclaim pleaded by Montrose alleges the elements of breach of contract, fraud, negligent misrepresentation and interference with prospective advantage or precontractual relations, it was error to dismiss the counterclaim. (H. M. Brown, Inc. v Price, 38 AD2d 680; Allegheny Coll, v National Chautauqua County Bank of Jamestown, 246 NY 369; King & Son v De Santis Constr. No. 2 Corp., 97 Misc 2d 1063; Schmidt v McKay, 555 F2d 30.)

      Charles M. Schultzman for respondent.
    I. The order sought to be appealed from does not finally determine the action within the meaning of the Constitution. II. The order of the court below should be affirmed as no issues of fact were raised on the motion. (Maliad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Broadway Sav. v Rosenblat, 32 AD2d 773; Ferlazzo v Riley, 278 NY 289; Graf v Hope Bldg. Corp., 254 NY 1.)

   OPINION OF THE COURT

Meyer, J.

In a foreclosure action based upon nonpayment, the mortgagee’s oral waiver of the right to accelerate the principal and foreclose in order to give the delinquent mortgagor a reasonable opportunity to negotiate an unforced sale of the mortgaged premises constitutes a valid affirmative defense to foreclosure, absent withdrawal of the waiver upon reasonable notice to the mortgagor. Accordingly, because the pleadings and affidavits in this foreclosure action create a triable issue of fact concerning waiver by plaintiff mortgagee and present nothing other than the commencement of the foreclosure action to suggest that plaintiff gave notice of withdrawal, it was error for the Appellate Division to strike from defendant mortgagor’s answer the affirmative defense of waiver and to grant plaintiff summary judgment of foreclosure. It was likewise error to strike defendant Montrose’s counterclaim. The judgment appealed from and the nonfinal order of the Appellate Division brought up for review should, therefore, be reversed and the order of Special Term should be reinstated.

I

In February, 1976, defendant Montrose Concrete Products Corporation mortgaged certain property to plaintiff Nassau Trust Company as security for a $300,000 loan. Louis G. Imperato, president of Montrose, and Edna Imperato, his wife, guaranteed the loan. The loan documents required quarterly amortization payments of $3,000 plus interest and gave Nassau Trust the option to accelerate the entire principal upon failure to make payments required by the mortgage within 30 days after the due date.

In February, 1977, Montrose was delinquent in its scheduled payments. Rather than declare a default, however, Nassau Trust entered into a written extension agreement with Montrose which established a new payment schedule. Neither the mortgage nor the note prohibited oral modification of the terms of either, but the extension agreement, which modified the note and mortgage, included a provision that “This agreement may not be changed or terminated orally.” Montrose was unable to honor even the new payment schedule, and in March, 1979, default was declared and foreclosure begun against Montrose and the Imperatos.

Nassau Trust’s complaint relied quite simply upon Montrose’s delinquency under the payment terms of the February, 1977 extension agreement. Montrose and the Imperatos each admitted nonpayment and pleaded affirmative defenses of waiver, unconscionability and unclean hands. Montrose’s answer additionally pleaded a counterclaim for damages equal to the difference between the fair market value of the mortgaged premises at the time the action was commenced and the sale price ultimately received for the premises based upon the facts set forth in the affirmative defenses. The Imperatos’ answer contained no counterclaim but asserted a fourth affirmative defense of release by reason of the extension agreement of February, 1977.

Essentially, the three affirmative defenses common to both answers rested on alleged oral representations made by Nassau Trust officers at three meetings held in June, October and December, 1978. According to Montrose and the Imperatos, Nassau Trust agreed at those meetings to waive any default in payment. In addition, as a result of those meetings, Nassau Trust allegedly knew or should have known that the subsequently initiated foreclosure action would prevent Montrose from concluding a sale of the mortgaged property at a fair market price sufficient to satisfy the balance due on the loan.

Nassau Trust moved to strike the answers of Montrose and the Imperatos as “sham and frivolous,” “demonstrably untrue,” as “constituting] no defense” and for summary judgment of foreclosure. Montrose and the Imperatos jointly opposed the motion with an affidavit by Louis Imperato. That affidavit expanded considerably upon the oral representations allegedly made at the June, October and December, 1978 meetings referred to in the answers. Names of the bank officers present were given. In addition, the affidavit introduced into the litigation a letter dated January 12, 1979 from Nassau Trust Vice-President Stuart C. Saxton to Mr. Imperato. The letter granted Montrose an extension of payment until January 31, 1979 “[pursuant to our conversation this afternoon.” In the letter, Saxton also agreed to consider granting Montrose an additional extension for a “period of time necessary to complete a closing” on the mortgaged property to Imperia Brothers, Incorporated, a competitor of Montrose, if two conditions were met by January 31 — payment of one year’s worth of delinquent real estate taxes and receipt of a signed contract for the sale of all or a portion of the mortgaged property.

The Imperato affidavit, however, set forth in specific detail his version of the telephone conversation of January 12 to which Saxton’s letter referred. According to Imperato, Saxton read him a draft of the letter and Imperato then informed Saxton that under no circumstances could the two conditions for an additional extension be met, and stated that the letter denied him adequate freedom to continue pending negotiations concerning the sale of the mortgaged premises and would require an immediate sale at a distress price. That the affidavit stated facts not conclusions is evident from the quotation following: “Mr. Saxton told me not to lower my asking price. Mr. Saxton said that I should not worry about the terms of the letter and that Nassau Trust would waive any default in meeting its terms until Montrose was able to close a sale to Imperia. I told Mr. Saxton that I would disregard his letter of January 12, 1979 and would contact him as soon as I had more details on the terms of the proposed sale to Imperia. Mr. Saxton agreed to this arrangement on behalf of Nassau Trust. I continued to negotiate with Imperia regarding the terms of the sale with the belief and understanding that Nassau Trust had waived any default during this period.” It also alleged the filing of a lis pendens and the initiation of foreclosure proceedings in March, 1979 by Nassau Trust had caused Imperia to withdraw from then pending negotiations in the expectation that the mortgaged property could be acquired on foreclosure at a far lower price than through negotiation and ended with the accusation that Nassau Trust had breached its agreement “to waive any defaults until the end of 1979.” No reply papers denying or disputing Mr. Imperato’s allegations were submitted by Nassau Trust.

Special Term denied the motion in its entirety reasoning that summary judgment was inappropriate, Nassau Trust having failed to refute the allegations of the Imperato affidavit, which raised issues of fact “the most important of which is whether plaintiff waived the defaults of defendants and its right to commence this action, at least until defendant owners could negotiate an unforced sale of the property.”

The Appellate Division modified the order of Special Term by striking the three common affirmative defenses as well as Montrose’s separate counterclaim and granting summary judgment of foreclosure aganst Montrose. It reasoned that any waiver by oral representation was invalid for want of consideration and that though section 5-1103 of the General Obligations Law dispensed with the need for consideration to support a written waiver signed by the party to be charged, the only such writing was Saxton’s January 12 letter which was subject to the conditions stated in it which concededly had not been complied with. As against the Imperatos it directed that the action be severed for trial of their fourth affirmative defense.

Final judgment of foreclosure having been entered by Special Term on remand to that court, Montrose appeals. The appeal brings up for our review the prior nonfinal Appellate Division order (CPLR 5601, subd [d]). For the reasons which follow, we reverse and reinstate the Special Term order.

II

When a plaintiff moves for summary judgment, it is proper for the court to look beyond the defendant’s answer and deny summary judgment if facts are alleged in opposition to the motion which, if true, constitute a meritorious defense (see Curry v Mackenzie, 239 NY 267; Gem Drywall Corp. u Scialdo & Sons, 34 AD2d 1063, app dsmd 27 NY2d 739; Alside Aluminum Supply Co. v Berliner, 32 AD2d 731; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.10, at n 53).

Here, although the answers rest the first three affirmative defenses upon claimed meetings in June, October and December, 1978 and make no reference to the letter and telephone conversation of January 12, 1979, the unrefuted allegations of Louis Imperato’s affidavit are sufficient to establish triable issues of fact concerning whether plaintiff’s Vice-President Saxton orally assured Imperato that, notwithstanding the contrary written conditions contained in Saxton’s January 12 extension letter, Montrose had up to one year to conclude an unforced sale of the mortgaged property, whether Montrose acted in justifiable reliance upon that assurance to its detriment and whether in consequence of the bank’s withdrawal of that assurance without notice Montrose lost the opportunity to conclude a negotiated sale at a price more favorable than could be obtained in foreclosure. Because, as is hereafter developed, it cannot be said that these factual issues, if resolved in Montrose’s favor, would nonetheless fail as a matter of law to constitute an affirmative defense to foreclosure, summary judgment should not have been granted to Nassau Trust.

Ill

Although the defenses pleaded are waiver, unconscionability and unclean hands, defendants’ brief argues waiver, estoppel and unconscionability and makes no mention of unclean hands. The cases are not always clear concerning whether what is being discussed is waiver, estoppel, bad faith or unconscionable conduct. They do establish, however, “that a mortgagor is bound by the terms of his contract as made and cannot be relieved from his default, if one exists, in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter’s part” (Ferlazzo v Riley, 278 NY 289, 292). Consistent with the rule referred to above that a defense established by the papers is sufficient though unpleaded to warrant denial of a motion for summary judgment, we consider not only the defenses pleaded but estoppel as well. We conclude that on the facts alleged the defenses should not have been stricken nor should the counterclaim have been dismissed.

The Appellate Division erred in failing to distinguish between an oral agreement that purports to modify the terms of a prior written agreement and an oral waiver by one party to a written agreement of a right to require of the other party certain performance in compliance with that agreement (see Imperator Realty Co. v Tull, 228 NY 447; Arnot v Union Salt Co., 186 NY 501; Toplitz v Bauer, 161 NY 325; Thomson v Poor, 147 NY 402), and in failing to consider whether the facts set forth in the Imperato affidavit were sufficient to sustain Montrose’s claims of waiver, estoppel, bad faith or unconscionability. Modification of the terms of a mortgage requires consideration except when a statute, such as section 5-1103 of the General Obligations Law dispenses with the need for consideration when a writing (such as the Feb., 1977 extension agreement) exists. Neither waiver (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37; Arnot v Union Salt Co., 186 NY 501, 511, supra; Prentice v Knickerbocker Life Ins. Co., 77 NY 483) nor estoppel (Rothschild v Title Guar. & Trust Co., 204 NY 458, 464; Witherell v Kelly, 195 App Div 227, 233) rests upon consideration or agreement. A modification, because it is an agreement based upon consideration, is binding according to its terms and may only be withdrawn by agreement. An estoppel “ ‘rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury’ ” (Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448; Lynn v Lynn, 302 NY 193, 205; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285, 292). It is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought (White v La Due & Fitch, 303 NY 122,128). While estoppel requires detriment to the party claiming to have been misled, waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable (City of New York v State of New York, 40 NY2d 659; Davison v Klaess, 280 NY 252). A waiver, to the extent that it has been executed, cannot be expunged or recalled (see Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, supra), but, not being a binding agreement, can, to the extent that it is executory, be withdrawn, provided the party whose performance has been waived is given notice of withdrawal and a reasonable time after notice within which to perform (Imperator Realty Co. v Tull, 228 NY 447, 456, supra; Arnot v Union Salt Co., 186 NY 501, 511, supra; Toplitz v Bauer, 161 NY 325, 333, supra; Thomson v Poor, 147 NY 402, 409, supra).

We have applied these principles to extensions of time for the payment of past due interest coupons on mortgage bonds (Arnot v Union Salt Co., supra); for the redemption of an insurance policy pledged for a loan past due (Toplitz v Bauer, supra); for the performance of a contract to peel bark from hemlock trees (Thomson v Poor, supra); and for the removal of violations which would otherwise constitute an objection to title of the real estate contracted to be conveyed (Imperator Realty Co. v Tull, supra), in each case finding that though no legally binding modification existed, an unwithdrawn waiver or waiver and estoppel stood in the way of enforcement of the original agreement. Moreover, lower courts using language of estoppel have upheld an affirmative defense and counterclaim predicated upon a mortgagee’s agreement after a mortgagor’s default to give the mortgagor adequate time to liquidate the mortgaged real property in an orderly fashion (Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538) and have also upheld an affirmative defense and counterclaim based upon an alleged agreement by a mortgagee to give the mortgagor additional time to obtain substitute financing (Marine Midland Bank — Western v Center of Williamsville, 48 AD2d 764). The legal principles at work are perhaps best summarized by Judge Cardozo, as he then was, concurring in the Imperator Realty Co. case. To the contention that the Statute of Frauds prohibited enforcement of the agreement to accept a cash deposit in lieu of removal of building violations because the agreement was oral, he responded (228 NY, at p 457): “I do not think we are driven by any requirement of the Statute of Frauds to sustain as lawful and effective this precipitate rescission, this attempt by an ex post facto revocation, after closing day had come and gone, to put the plaintiff [seller] in the wrong. ‘He who prevents a thing from being done may not avail himself of the non-performance which he has, himself, occasioned, for the law says to him, in effect; “This is your own act, and, therefore, you are not damnified” ’. The principle is fundamental and unquestioned. Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver. We need not go into the question of the accuracy of the description. The truth is that we are facing a principle more nearly ultimate than either waiver or estoppel, one with roots in the yet larger principle that no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong. The Statute of Frauds was not intended to offer an asylum of escape from that fundamental principle of justice.” (Citations omitted.)

Against this background of decisional law it is evident that even if there were no consideration for Saxton’s alleged assurances made in the telephone conversation of January 12, 1979, the Imperato affidavit sets forth unrefuted facts from which, notwithstanding Montrose’s admitted delinquencies, a waiver of the right to declare a default and foreclose may be found by the trier of fact. Upon the basis of the affidavit may also be found reliance, justifiable by reason of the past history of extension, by Montrose to its detriment in that it continued to negotiate with Imperia rather than to seek other ways out of its dilemma only to have Imperia withdraw from those negotiations when foreclosure was instituted without notice or any reasonable opportunity to cure its defaults or conclude a negotiated sale of the mortgaged premises. Whether Montrose can convince the trier of fact of those facts, or whether Nassau Trust can show that the giving of notice would “have been but an idle ceremony, and could not have changed the situation” (Toplitz v Bauer, 161 NY 325, 335, supra) are questions not before us.

Nor does the provision in the extension agreement against oral change or termination foreclose the defense Montrose now asserts, for subdivision 1 of section 15-301 of the General Obligations Law speaks only to a change by agreement (that is, a modification) and not to a waiver, as is evident from the explicit reference to waiver in subdivisions 4 and 5 of the same section (cf. Rose v Spa Realty Assoc., 42 NY2d 338, 343; General Obligations Law, § 5-1103; Uniform Commercial Code, § 2-209, subd [4]; par 2 of NY Anns to subd [4] [McKinney’s Cons Laws of NY, Book 62-1/2, Part 1, p 183]; 1956 Report of NY Law Rev Comm, pp 371-372).

Montrose argues that, apart from the foregoing equitable principles, there was, indeed, consideration for the January 12, 1979 oral agreement to extend which bound Nassau Trust not to foreclose. The Imperato affidavit states the forbearance period variously as “for one year” (which would mean until January 12, 1980), “until Montrose was able to close a sale of the property to Imperia,” and “until the end of 1979,” but those discrepancies simply create a credibility issue for the trier of fact. Defendants may be able to show detriment to themselves or benefit to Montrose through the continued negotiations with Imperia (Holt v Feigenbaum, 52 NY2d 291, 299; see Raedeke v Gibraltar Sav. & Loan Assn., 10 Cal 3d 665). If consideration is established by the proof there would then be a modification, as distinct from waiver or estoppel. If so Montrose may, in light of the provision in the extension agreement against oral change and of subdivision 1 of section 15-301 of the General Obligations Law, have proved itself out of court, unless it can prove a writing or an estoppel. At the present stage of the action, however, the unrefuted Imperato affidavit is sufficient to require a trial, though, as above noted, the answers will have to be amended to conform the defenses and counterclaims alleged to the allegations and arguments of defendants’ affidavit and brief.

For the foregoing reasons, the judgment appealed from and the nonfinal order of the Appellate Division brought up for review should be reversed and the order of Special Term dated October 31, 1979 reinstated, with costs.

Jasen, J.

(dissenting). The majority holds today that in a mortgage foreclosure action based upon nonpayment of interest and principal, an alleged oral waiver by the mortgagee of the right to accelerate the principal and foreclose constitutes a valid affirmative defense to foreclosure. Since sound legal principles and the record in this case make such a result unreasonable and untenable, I disagree with the majority’s holding and would affirm the order of the Appellate Division.

Plaintiff, who had loaned the defendant $300,000, agreed to enter into an extension agreement rather than foreclose on the property defendant had mortgaged to secure the loan. That extension agreement established a new payment schedule, provided that the agreement could not be changed or terminated orally, and also provided that all the rights and obligations specified by the parties under the prior agreement would be continued under the terms of the extension agreement. Particularly pertinent to this case is paragraph 8 of the mortgage which provides that the whole principal will become due and payable upon the failure of Montrose to “pay any installment of principal or interest within thirty days from the date same became due and payable.” Except for its obvious obligation to repay the loan, the defendant had no responsibilities under the contract other than to continue to pay certain real property taxes.

It is not disputed that the defendant also defaulted on its responsibilities under the extension agreement. Even then, the bank did not immediately exercise its right to foreclose, but rather continued, in good faith, to work out an arrangement whereby the defendant could make the required payments.

When it appeared that no satisfactory arrangement would be reached, Mr. Saxton, a vice-president of the bank, according to affidavits filed by the defendant, called and informed Mr. Imperato, president of the defendant company, that certain payments had to be made by the end of the month or the bank would be forced to proceed with the foreclosure action. He also informed Mr. Imperato that the bank would be forwarding a letter to that effect. Obviously upset with this action, Mr. Imperato argued for additional time to complete the negotiations for the sale of defendant Montrose to its competitor, Imperia Brothers, Inc., and, according to the affidavit, Mr. Saxton agreed “to waive any default in meeting its terms until Montrose was able to close a sale to Imperia.”

Along with his affidavit, Mr. Imperato filed a copy of the letter dated January 12, 1979, which he received from the bank. That letter indicated the bank was allowing Montrose until January 31, 1979 to pay the delinquent real estate taxes and present the bank with a signed contract of sale to Imperia. That letter stated that these conditions were set forth on the basis of the telephone conversation between the parties. It further stated that: “If these conditions are met, Nassau Trust Company will consider extending for an additional period of time necessary to complete a closing on said contract.” In closing the letter, Mr. Saxton reiterated the bank’s position that if the terms of the letter were not met, Nassau Trust would begin immediate foreclosure proceedings. Despite the clear language of the letter, Mr. Imperato states that he ignored the letter and relied on the prior oral waiver. He did so without so much as double-checking his understanding of the telephone conversation, to which the letter made specific reference, with Mr. Saxton or anyone at the bank.

The affirmative defense which these papers allegedly raise is that the bank orally waived its right to foreclose for one year and that because he relied on that waiver in continuing to negotiate with Imperia, the bank is now estopped from asserting its right to foreclose. (Imperator Realty Co. v Tull, 228 NY 447.) Defendant’s brief, however, also argues that there was an oral modification of the agreement because the bank agreed to defer its right to foreclose for one year in exchange for the defendant securing a buyer for the property and paying off the loan with the proceeds of the sale. Any construction of these allegations, I believe, can only lead one to conclude that there is no basis, applying sound commercial and contract law principles, on which to hold that a valid affirmative defense has been asserted.

The clear language of the extension agreement states that “[tjhis agreement may not be changed or terminated orally.” On the face of that provision and subdivision 1 of section 15-301 of the General Obligations Law, it appears clear that the parties intended that all changes, be they terminations, waivers or modifications, would be required to be in writing. Certainly, contracting parties have the discretion to require that all further changes, of any variety, be in writing. Indeed, such provisions are designed precisely to avoid litigation, such as presented by this case, which is based on mere bare allegations of oral waivers, to which no defense except the assertion that the oral waiver was never made can be raised.

Nor was it unreasonable for the parties to this agreement to assume that the broad “no changes” language used in this agreement would bar allegations of all forms of changes under section 15-301 of the General Obligations Law. The majority states that “subdivision 1 of section 15-301 of the General Obligations Law speaks only to a change by agreement (that is, a modification) and not to a waiver,” but the language of that statute states only that “[a] written agreement * * * which contains a provision to the effect that it cannot be changed orally, cannot be changed by executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought”. (Emphasis supplied.) Thus, it seems clear to me that when the parties agree, as it is alleged by the defendant that they did in this case, that there will be a new payment date (be it one year hence or at the time of sale) that new agreement is required by section 15-301 of the General Obligations Law to be in writing. Indeed, subdivision 4 cited by the majority indicates that the bank could not have initially waived the contract provision barring oral changes which would have been necessary to enable it to orally change the provisions concerning the payment schedule.

Furthermore, the specific language exempting waivers used in section 2-209 of the Uniform Commercial Code, also cited by the majority, indicates that the Legislature did not intend to so exempt waivers from the coverage of the General Obligations Law. If it had so intended, there is no reason why the specific language referring to waivers used in section 2-209 of the Uniform Commercial Code could not have been used in this statute also. But instead, the statute forbids all changes by executory agreement — that is, agreements yet to be performed. Since Mr. Imperato’s affidavit alleges only future obligations on the part of either party, this is clearly an executory agreement. (East Riv. Sav. Bank v 245 Broadway Corp., 284 NY 470, 476.)

But even if one construes section 15-301 of the General Obligations Law, as does the majority, not to cover waivers, there is no support for terming this new agreement to be a waiver. Although the defendant asserts that this is a waiver, the facts presented allege not a waiver (Clark v West, 193 NY 349, 360), but an oral modification of the contract. A modification, which he argues, is supported by an exchange of promises: the bank promising not to foreclose and the defendant promising to secure a buyer for the property. Such a modification, even the majority would agree, is clearly barred by section 15-301 of the General Obligations Law. (Chemical Bank v Wasserman, 45 AD2d 703, affd 37 NY2d 249.) To construe this as a waiver, rather than a modification of the contract, ignores the fact that substantial rights and obligations of both parties are affected by this change in the contract. The bank has deferred certain rights for at least one year and the defendant has assumed a new obligation — to find a purchaser. The fact that he already was negotiating with a purchaser did not make this any less of an obligation.

Assuming, however, that it is reasonable to construe Mr. Imperato’s allegations to assert a waiver by the bank, the affidavit and the letter submitted indicate that the bank adequately notified Mr. Imperato of its intention to withdraw any prior waivers. Even crediting Mr. Imperato’s statement to the effect that the bank waived its right to foreclose during the telephone conversation, the letter submitted by the defendant indicates that the bank was withdrawing all previously made waivers, including any made in the course of that telephone conversation. Thus, it is clear that this affirmative defense cannot stand because, as stated by the majority, “[in] a foreclosure action based on nonpayment, the mortgagee’s oral waiver of the right to accelerate the principal and foreclose * * * constitutes a valid affirmative defense to foreclosure, absent withdrawal of the waiver upon reasonable notice to the mortgagor.” I fail to perceive what more notification would or should be necessary to withdraw this alleged waiver.

Viewed in any of these postures, the allegations of the defendant assert an oral executory agreement which either violates the no oral change provision in the agreement or violates section 15-301 of the General Obligations Law because it constitutes a modification of the contract. To hold, as the majority does, defeats both the intent of the parties and that of the Legislature. But even if the majority’s interpretation is to be totally adopted, the facts presented by the defendant clearly indicate that he was notified of the bank’s withdrawal of any and all previous waivers. The majority’s interpretation means that, in the future, no lending institution, however carefully and precisely it may word its mortgage documents, will be able to protect itself against claims that one of its sympathetic officers has orally waived its right to foreclose the mortgage, no matter how specious the claim may be. I believe today’s holding will have a profound effect in the sphere of commercial and contractual transactions and will, I trust, invoke immediate legislative reply.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Jones concurs.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and the order of Supreme Court, Westchester County, dated October 31, 1979, reinstated.

      . The section provides: “An agreement, promise or undertaking to change or modify, or to discharge in whole or in part, any contract, obligation, or lease, or any mortgage or other security interest in personal or real property, shall not be invalid because of the absence of consideration, provided that the agreement, promise or undertaking changing, modifying, or discharging such contract, obligation, lease, mortgage or security interest, shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge, or by his agent.”

      . The contention in the dissent that a contracting party has no way to protect himself against a specious claim of waiver is only partially true, for on a trial the fact finder will determine the credibility of the waiver claim. Any argument that the provision of the extension agreement should be sufficient to bar an oral waiver as well as oral modification or termination should be addressed to the Legislature. The Uniform Commercial Code provision above referred to suggests that legislative policy is to the contrary, however, and in light of that fact we certainly would not be warranted in extending subdivision 1 of section 15-301 as the dissent argues. The suggestion in the dissent (pp 191-192) that the January 12, 1979 letter indicated that the bank was withdrawing all waivers including any in the course of the telephone conversation it referred to is not borne out by the letter which speaks of the bank’s patience but uses no language of waiver. Incorrect also is the'dissent’s characterization of subdivision 4 of section 15-301 of the General Obligations Law (p 190); that subdivision speaks not to “oral changes” but only to “termination or discharge.”

      . The Montrose brief suggests that once it has had the opportunity for discovery it may be able to turn up a writing meeting the requirements of the subdivision.

      . Although costs are awarded, we take the occasion to note that they could well have been denied by reason of appellants’ failure to comply with CPLR 5529 (subd [al, par 3). That paragraph requires that reproduction by facsimile be “in clear type of no less than elite in size.” The guarantees reproduced at pages 50-53 of the record are in very much smaller type and reproduced so poorly as to be in good part unreadable. The extension agreement at pages 54-56 of the record while slightly larger and partly readable do not conform with the rule. We point out the problem not only for the guidance of counsel in this case but also for the attention of the Bar and legal printers in general and to make known that future such cases may result in denial or imposition of costs, as appropriate, or in extreme cases in refusal to receive the record or brief for filing (cf. Slater v Gallman, 38 NY2d 1, 4-5).