TRANEL, INC. v. FASHION INST. OF TECH., 570178/09 [1st Dept 1-13-2010

PER CURIAM.

Order (Joan M. Kenney, J.), dated July 15, 2008, insofar as appealed from, affirmed, with $10 costs. Appeal from order (same court and Judge), dated April 11, 2008, dismissed, without costs, as superseded by the appeal from the subsequent order on reargument. Landlord's motion for summary judgment was properly denied. Contractual rights may be waived, and the existence of an intent to forego such a right is generally a question of fact ( see Fundamental Portfolio Advisors, Inc. v Toqueville Asset Mgt., LP., 7 NY3d 96, 104). Based upon the extended course of conduct between the parties and the invoices and other correspondence sent by landlord to tenant, triable issues exist as to whether landlord waived its right to strictly enforce the literal terms of the governing commercial lease agreement relating to tenant's obligation to pay electricity charges ( see generally Kenyon Kenyon v Logany , 33 AD3d 538 ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur