COURTNEY CLARKE v. RIZZOLI INTERNATIONAL PUBLICATIONS INC (1998)

Order, Supreme Court, New York County (Stuart Cohen, J.), entered on or about January 17, 1997, which, insofar as appealed from, granted plaintiff author's motion for partial summary judgment dismissing defendant publisher's affirmative defenses of waiver, estoppel and accord and satisfaction, unanimously modified, on the law, to deny the motion as to the defense of estoppel, and to reinstate that defense, and otherwise affirmed, without costs.

 The requisite clear manifestation of an intent by plaintiff to relinquish her known right to the royalty rate in the publishing agreement is not inferable, under the circumstances, from her mere silence, oversight or thoughtlessness in failing to object to the lower royalty rate she had been receiving, and thus the defense of waiver was properly dismissed (see, Bank of New York v. Murphy, 230 A.D.2d 607, 608, 645 N.Y.S.2d 800, lv. dismissed 89 N.Y.2d 1030, 658 N.Y.S.2d 245, 680 N.E.2d 619;  Peck v. Peck, 232 A.D.2d 540, 649 N.Y.S.2d 22).   The defense of accord and satisfaction was also properly dismissed, there being no issue of fact as to the existence of a disputed claim at the time the reduced royalty payments were made (see, Bank of New York v. Murphy, supra at 607, 645 N.Y.S.2d 800;  Consolidated Edison Co. v. Jet Asphalt Corp., 132 A.D.2d 296, 303, 522 N.Y.S.2d 124).   However, the fourth affirmative defense of estoppel should not have been dismissed, there being issues of fact as to whether, as defendant asserts, further reprints of plaintiff's book would not have been economically viable unless plaintiff agreed to forgo her contractual royalty rate, defendant informed plaintiff of this choice, and plaintiff opted for further reprints at a reduced rate (see, Broadworth Realty Assocs. v. Chock 336 B'way Operating, 168 A.D.2d 299, 562 N.Y.S.2d 630, lv. denied 77 N.Y.2d 808, 570 N.Y.S.2d 488, 573 N.E.2d 576).   We have considered defendant's other contentions and find them to be without merit.

MEMORANDUM DECISION.