I just dealt with these defenses in a recent case: accord and release and waiver. Here are the legal standards:
“An accord is an agreement that a stipulated performance will be accepted, in the future, in lieu of an existing claim . . . [e]xecution of the agreement is a satisfaction.” Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383 (1993).
“In the absence of fraud, duress, illegality or mistake, a general release bars an action on any cause of action arising prior to its execution.” Mergler v. Crystal Properties Associates, Ltd., 179 A.D.2d 177, 178 (1st Dept. 1992). “Waiver is an intentional relinquishment of a known right and should not be lightly presumed.” Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968 (1988).
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