I respectfully dissent.
The record herein adequately raises a triable issue concerning whether plaintiffs actions during the term of the contract constituted a waiver of those provisions now sought to be enforced. Accordingly, due to the potential viability of this defense and the need for further discovery thereon, summary judgment should not be awarded (see, BIB Constr. Co. v City of Poughkeepsie, 204 AD2d 947). Ordered that the order is reversed, on the law, with costs, cross motion denied and motion granted to the extent that plaintiff is awarded partial summary judgment on the issue of liability on the first, second, third, fifth, sixth and seventh causes of action in the complaint.