Defendant's contract with plaintiff, containing separate production and payment schedules for each of the four CD-ROM games plaintiff was to deliver to defendant, was a divisible contract (see, Christian v. Christian, 42 N.Y.2d 63, 73). Accordingly, plaintiff's right to recover payments guaranteed under the contract for the two CD-ROM games delivered to defendant was not impaired by plaintiff's failure to deliver the two remaining games and, in its award of partial summary judgment, the motion court correctly determined, as a matter of law, that defendant's claim that plaintiff breached the parties' agreement by failing to deliver the CD-ROM games on time, had been waived by defendant's requests for significant modifications in the games and by defendant's acceptance and marketing of the games without objection (see, Fifty States Mgt. v. Niagra Permanent Sav. Loan, 58 A.D.2d 177, 181).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.