dissents and votes to reverse in a memorandum. Mikoll, J. (dissenting). There should be a reversal of the order of Supreme Court. In my view, plaintiff’s failure to pay the $1,620.82 Sears, Roebuck bill with the proceeds of the $2,000 flood insurance check, as required by a provision of the agreement, was a material and substantial breach of the agreement and there is insubstantial evidence to find that defendant waived the breach by her conduct. At the time defendant submitted her affidavit there was still $1,369.07 remaining due on the Sears, Roebuck bill. The failure to pay that bill was a continuing breach of the agreement. It was certainly a continuing harm to defendant’s credit status. If defendant can be said to have waived performance of this provision of the contract by failing to have sought rescission earlier, then the same argument can be used against plaintiff. Specifically, plaintiff asserts that defendant’s cohabitation occurred at or before the time the agreement was signed in November 1984, yet he did not commence legal action on the noncohabitation clause until December 1985. We should not employ a double standard in measuring the conduct of the parties.
Further, it is significant that the record does not indicate that plaintiff paid defendant any money except child support payments. It is therefore incorrect, in my view, to conclude that plaintiff paid $500 of the insurance proceeds to defendant *750in addition to the child support payments he made to defendant from the insurance proceeds. Plaintiffs statements regarding how much of the proceeds from the insurance check were paid as child support can only be characterized as , evasive and nondispositive.