Friedman v. Lillie Einsidler Trust No. 201

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about July 10, 1997, which denied plaintiff’s motion for partial summary judgment dismissing defendants’ remaining counterclaim for unpaid rent, unanimously affirmed, without costs.

Waiver is an intentional relinquishment of a known right and should not be lightly presumed (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966). Here, plaintiffs papers did not establish his entitlement to judgment in his favor as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853) and, in any event, the affidavits and documentary evidence submitted on behalf of defendants clearly raise issues of fact for trial (see, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff’s remaining arguments are without merit.