Bono v. Cucinella

Majority - Per Curiam (S. Miller, J.P., Krausman, Goldstein and Rivera, JJ.)

Yes, an estate's oral agreement to take back mortgaged property in satisfaction of the mortgage debt, coupled with admissions in a prior judicial proceeding stating the debt was satisfied, constitutes a valid waiver, and such an agreement is not barred by the Statute of Frauds or the parol evidence rule. The court affirmed the dismissal of the action, but only on the basis of the affirmative defense of waiver. The Appellate Division rejected the trial court's application of judicial estoppel, explaining that this doctrine applies only where a party has secured a judgment in its favor by adopting a certain position in a prior proceeding and then seeks to assume a contrary position. Since no judgment or decree was secured in the Surrogate’s Court proceeding, judicial estoppel was inapplicable. However, the court found that the defendants successfully established their affirmative defense of waiver. Waiver is defined as the voluntary abandonment or relinquishment of a known right, which can be accomplished by express agreement or by conduct evincing an intent not to claim the purported advantage. The defendants made a prima facie showing of waiver based on the Estate's admissions during the Surrogate’s Court proceeding, and the Supreme Court properly discredited the plaintiff Salvatore Bono's contradictory testimony. The court further held that the evidence of the waiver was not barred by the Statute of Frauds, because oral agreements that violate the Statute are enforceable when the party to be charged admits having entered into the contract. The Estate's accounting in Surrogate’s Court, which specifically stated the property had been returned in satisfaction of the debt, served as such an admission. Lastly, the parol evidence rule did not bar the evidence of the oral waiver, as the agreement had been acted upon to completion.