dissents in a memorandum as follows: This breach of contract action arises out of defendants’ alleged violation of a noncompete agreement the parties entered into in the course of exploring a possible acquisition by defendant investment advisory firm, Tocqueville Asset Management, L.P, of the investment advisory assets of plaintiff Fundamental Portfolio Advisors (FPA), an investment advisory firm. I disagree with the majority’s award of summary judgment to defendants, because issues of fact make it improper to conclude as a matter of law that plaintiffs waived their rights under the parties’ contract. Nor are undisputed grounds presented for imposition of an estoppel preventing the withdrawal of any such waiver.
Plaintiff Lance Brofman is the principal shareholder and president of plaintiff FPA, as well as a shareholder of plaintiff Fundamental Service Corp. (FSC), the broker/dealer affiliated with FPA; the other part owner and officer of FPA and FSC was Vincent Malanga. FPA had been the investment advisor for a group of five mutual funds (collectively, the Fundamental Funds or the Funds) since 1980, when Brofman founded the first of the Funds; FSC was their distributor. For over a decade, Brofman served, through FPA, as the Funds’ chief portfolio strategist.
In 1994, in the wake of a Securities and Exchange Commission (SEC) investigation into whether FPA had properly disclosed the Funds’ risks, and in view of the concerns of certain of the Funds’ directors, Brofman and Malanga contemplated selling the business. The complaint alleges that on October 17, 1995, Christopher Culp, an officer of defendant Tocqueville, contacted Brofman and Malanga to propose the possibility of a merger or acquisition by Tocqueville of FPA, and after additional conversations, the two firms sent each other relevant publicly available documents such as annual reports and prospectuses for the mutual funds. Nonpublic information would be provided only at such time as Tocqueville signed a noncompete agreement to prevent direct solicitation by Tocqueville of the funds managed by FPA.
On September 24, 1996, at a meeting attended by Robert Kleinschmidt, Tocqueville’s president, along with Culp, Brofman and Malanga, it was agreed that, as part of Tocqueville’s due diligence to observe whether the five mutual funds managed by FPA were a good fit with those managed by Tocqueville, *213Christopher Culp would work from FPA’s office for a few months. In exchange, Tocqueville’s representatives, including Kleinschmidt and Culp, executed a nondisclosure and noncompete agreement, in which they agreed “not to solicit or engage in any business activity involving any of the mutual funds which have had, or ever in the future have business relationships with FPA . . . without prior written consent of both Brofman and Malanga.” The agreement also contained a nonwaiver clause, providing that “No delay or omission by FPA, Brofman or Malanga in exercising any right under this Agreement will operate as a waiver of that or any other right,” and that any “waiver or consent given by FPA, Brofman and Malanga on any one occasion is effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion.”
At its December 31, 1996 meeting, the board of directors of the Fundamental Funds renewed FPA’s contract, although it prohibited Brofman from continuing to serve as chief portfolio strategist and banned him from making decisions or trades on behalf of the Funds.
In early 1997, FPA and Tocqueville arrived at a tentative agreement for Tocqueville to purchase FPA’s investment advisory assets for a percentage of the Funds’ revenues, estimated to come to a total of approximately $6 million. With FPA’s permission, on February 18, 1997, Culp began to work at FPA’s offices on behalf of the Funds, for the purpose of performing due diligence and learning how FPA did business. To enable Culp to operate the Funds while performing due diligence, beginning in February 1997 Culp was given access to FPA’s mutual fund shareholder information, and permitted to make presentations to the Funds’ board regarding portfolio management.
In April, Malanga, on behalf of FPA, forwarded to the Funds’ board Tocqueville’s proposal to acquire FPA’s contracts and take over as advisor to the Funds, with a letter “strongly endorsing]” the proposal. The board neither approved nor rejected Tocqueville’s proposal. Rather, in May 1997, the board sent four investment advisory firms, including Tocqueville, requests for proposals regarding the management of the Funds’ assets; notably, the requests specified that they were “for the purchase of the existing management contracts of the five funds from the current advisor [FPA].”
Although throughout this period negotiations continued between FPA and Tocqueville, no deal was reached. Plaintiffs allege that in late November 1997, Kleinschmidt told others, including major FPA customer Ken Wideletz, who represented *214$70 million in funds, that he intended to acquire the Fundamental Funds with or without FPA’s consent. Tocqueville vice-president Drew Rankin called Wideletz and asked for his support in his company’s takeover of the Funds, and Kleinschmidt tried to convince two trustees of the Funds to turn them over to Tocqueville.
In December 1997, the Funds renewed FPA’s management agreement for a period of only 90 days, instead of its usual one-year term, in contemplation of the consummation of the transaction pursuant to which Tocqueville would assume the Funds’ management. At the expiration of the 90 days, the board approved a 60-day continuance, through May 30, 1998.
In late May 1998, Tocqueville was appointed interim investment advisor to the Funds, and Tocqueville Securities as their distributor, as of June 1, 1998. Toequeville’s Kleinschmidt and Lyons were appointed president and vice-president, respectively, of the Funds.
Plaintiffs commenced this action, alleging that defendants breached the noncompete agreement by engaging in business activity with the Fundamental Funds without plaintiffs’ prior written consent, and thereby caused plaintiffs’ loss of their business relationship with the Funds; plaintiffs sought $6 million in damages for breach of contract.
Defendants moved for summary judgment dismissing the complaint, relying on minutes of meetings of the Funds’ board of directors in order to assert that the decision of the Funds’ board to replace plaintiffs was the result of plaintiffs’ own poor work and misconduct, and was not due to anything defendants had done. Defendants also asserted an entitlement to dismissal on the grounds of waiver and estoppel.
The IAS court dismissed plaintiffs’ contract claim, finding that Brofman and Malanga had waived the noncompete agreement’s requirement of written consent by encouraging and assisting Tocqueville in seeking appointment as investment advisor to the Funds. To the extent they may have subsequently withdrawn their consent, the court found that they were estopped from doing so because the Funds’ board had already accepted Tocqueville as interim advisor, and would not have done so without Brofman and Malanga’s encouragement. The majority affirms the dismissal. I disagree.
It is undisputed that defendants ultimately both solicited and engaged in business activity with the Funds without plaintiffs’ consent, despite their agreement “not to solicit or engage in any business activity involving any of the mutual funds” without the prior written consent of plaintiffs’ principals. Nevertheless, *215the majority dismisses plaintiffs’ breach of contract claim in the face of this clear breach, because it holds that in the course of the contemplated acquisition process, plaintiffs waived the written consent condition.
Ironically, the finding that plaintiffs waived the written consent provision depends upon the very actions that plaintiffs took in reliance upon that same provision. That is, in order to proceed toward the consummation of the contemplated purchase by Tocqueville of FPA’s investment advisory assets, namely, the Funds, while negotiations were ongoing, plaintiffs took the steps necessary to give the Funds grounds to approve of Tocqueville stepping into FPA’s shoes and managing the Funds’ investments: they permitted Tocqueville’s representatives to work in a management capacity for the Funds in order to permit Tocqueville to demonstrate that it would be able to successfully take on the Funds’ management. FPA permitted this because it was protected by defendants’ noncompete agreement, so that if Tocqueville went on to solicit or do business with the Funds without having obtained the written consent of FPA—which it would obtain in the context of a final agreement with FPA— Tocqueville would be liable to FPA for a breach of that agreement. Indeed, finding the existence of a waiver as a matter of law here requires viewing the parties’ noncompete agreement as failing to accomplish its only goal: that of ensuring that FPA’s cooperation with Tocqueville in its contemplated acquisition of FPA’s assets would not result in Tocqueville replacing FPA as investment advisor to the Funds without payment to FPA.
The showing contained in the record before us fails to support the finding of waiver as a matter of law. A waiver must be “clearly established” (Barbour v Knecht, 296 AD2d 218, 226 [2002]), “unmistakably manifested” and “not lightly presumed” (Navillus Tile v Turner Constr. Co., 2 AD3d 209, 211 [2003]). It may only be inferred from conduct or a failure to act where that conduct “evince[s] an intent not to claim the purported advantage” (Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]), and whether or not that intent existed is generally a question of fact (see Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442, 446 [1984]). Plaintiffs’ conduct, as reflected in the record, does not establish grounds to infer that they intended to relinquish the expected advantage that Tocqueville would not on its own engage in a direct business relationship with the Funds except by agreement with plaintiffs. Indeed, plaintiffs’ conduct during the course of negotiations, in promoting Tocqueville’s management of the Funds, was intended to ultimately bring about the contemplated *216transfer of the management contract from FPA to Tocqueville in exchange for that payment. That conduct is insufficient to permit the inference of an intent to waive the written consent requirement as a matter of law.
This is especially so in the face of the agreement’s nonwaiver clause. Generally, a specific nonwaiver clause is effective to bar claims of waiver (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69-70 [2003], lv dismissed 2 NY3d 794 [2004]). While there are instances where waiver has been found even in the face of a nonwaiver clause, these cases involve efforts to prevent forfeiture by preserving a leasehold or some similar interest (see e.g. TSS-Seedman’s, Inc. v Elota Realty Co., 72 NY2d 1024, 1027 [1988]; Atkin’s Waste Materials v May, 34 NY2d 422 [1974]; Lee v Wright, 108 AD2d 678 [1985]; Dice v Inwood Hills Condominium, 237 AD2d 403 [1997]), which concept is inapplicable here.
Moreover, since the nonwaiver clause also specifically provided that “[a] waiver or consent given by FPA, Brofman or Malanga on any one occasion is effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion,” even if plaintiffs’ consent to have Culp work in FPA’s offices during the merger negotiations and for purposes of due diligence may be viewed as waiving certain rights, it may not be relied upon to operate as establishing consent, as a matter of law, to all types of business interactions between Tocqueville and the Funds in the absence of FPA’s approval.
It is further inappropriate to hold that plaintiffs must be estopped from withdrawing their previous consent to Tocqueville’s seeking appointment as investment advisor to the Funds, because the elements of estoppel were not established as a matter of law. In order to impose an estoppel, the party to be estopped must have made a false representation, with the intention or expectation that this misrepresentation would be acted upon (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1985]). Additionally, the party seeking the estoppel must show a lack of knowledge of the true facts, reliance on the misrepresentation, and a prejudicial change in position (id.). The rationale for imposing such an estoppel is to protect the party seeking the estoppel from a fraud or injustice perpetrated by the party being estopped (see 57 NY Jur 2d, Estoppel, Ratification, and Waiver § 3).
Here, no misrepresentation was made to defendants, and defendants knew the true facts. Moreover, the requirement of detrimental reliance is not established on this record (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, *217184 [1982]; see e.g. Linarello v City Univ. of N.Y., 6 AD3d 192, 195 [2004]). An assertion that plaintiffs failed to provide the necessary written consent after Tocqueville took steps in the expectation that such consent would be provided is insufficient. The parties had entered into an arrangement which contemplated that Tocqueville would pay plaintiffs if it succeeded in taking over management of the Funds; under the parties’ agreement, plaintiffs had the right to withhold their permission for such an arrangement unless a mutually acceptable payment was agreed upon. For plaintiffs to have acted in accordance with that arrangement cannot provide a basis for an estoppel.
The majority reasons that the board’s decision to replace FPA with Tocqueville was not a result of defendants’ actions, but based solely on its loss of confidence in plaintiffs. However, aside from the clear factual nature of the determination of whether the board would have replaced FPA in the absence of a viable replacement, the fact also remains that even though the Funds were free to hire whatever management company they chose, Tocqueville was contractually bound to plaintiffs to not solicit or do business with the Funds without plaintiffs’ consent. Regardless of the Funds’ motivations and reasoning, Tocqueville was in breach of the contract by stepping in without plaintiffs consent.
Finally, the conclusion that FPA cannot establish any damages clearly constitutes a finding of fact unwarranted in the context of this summary judgment motion.
Nor did the SEC finding against Brofman present a bar to plaintiffs’ recovery. Not only was the matter still on review at the agency at the time of this summary judgment motion, but, more importantly, illegality or fraud will preclude recovery, as a matter of public policy, only where the claimed recovery is “ ‘central to or a dominant part of the plaintiffs whole course of conduct in performance of the contract’ ” (Ross Bicycles v Citibank, 178 AD2d 388, 390 [1991], quoting McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 [I960]). Here, the recovery sought does not emanate from and is not directly related to the SEC’s allegations of wrongdoing against Brofman.
In addition, while the amount that plaintiffs might have recovered from a merger transaction was based upon a percentage of future earnings that Brofman and FPA might not ultimately have been allowed to collect, the matter remained subject to negotiation with the SEC and it might well be that the parties could have structured a method of payment to avoid this problem.
For all the foregoing reasons, it is inappropriate to dispose of this action in this context.