(dissenting). I respectfully dissent. I am of the opinion that the parties’ conduct effected a waiver of the foundation course requirement. Notably, after construction commenced, two change orders were issued concerning the paving work to be done. Each referenced the thickness of two *619courses of asphalt paving, namely the binder course and the top course, but neither mentioned the foundation course. In addition, Clayton Tanner testified that he thought a foundation course was unnecessary and, prior to the submission of his bid, related that fact to a representative of Sargent, Webster, Crenshaw and Folley who apparently agreed. He stated that, unlike the other courses, Sargent, Webster, Crenshaw and Folley did not require him to submit a mix of the foundation course for approval. Tanner also stated that he told Paul Marcais, plaintiffs clerk of the works, that the foundation course had been deleted from the specifications and that he did not include this requirement in his bid. He further stated that Marcais, who supervised the construction daily, did not direct him to install the foundation course during the course of the paving.
In my view, this proof is sufficient to establish that plaintiff intentionally relinquished its right to require that the foundation course be installed in accordance with the original specifications. Although this Court’s scope of review is as broad as that of the trial court (see, Patane v Romeo, 235 AD2d 649, 650, lv denied 89 NY2d 813), and the majority has chosen to credit the testimony of Donald Van Cott over that of Tanner, I believe that deference to the credibility determinations of the trial court is appropriate under these circumstances (see, Merritt Meridian Constr. Corp. v Old Country Iron Works, 229 AD2d 661, 663). Because the record provides no compelling reason to disregard Supreme Court’s credibility assessment (see, Weaver v Acampora, 227 AD2d 727, 728), and the change orders are indicative of the parties’ intention to abandon the foundation course requirement, Supreme Court properly concluded that plaintiff waived its right to compel compliance with this condition. Therefore, I would affirm the order and judgment of Supreme Court.
Ordered that the judgment and order are modified, on the law and the facts, with costs to plaintiff, by reversing so much thereof as dismissed plaintiffs cause of action alleging breach of contract and found for defendants on the defenses of waiver and estoppel; judgment is rendered in favor of plaintiff on said causes of action and matter remitted to the Supreme Court for a trial on the issue of damages; and, as so modified, affirmed.