In Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Management, L.P. (7 NY3d 96 [2006]), the Court of Appeals observed that: Contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned. Such abandonment "may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage." However, waiver "should not be lightly presumed" and must be based on "a clear manifestation of intent" to relinquish a contractual protection. Generally, the existence of an intent to forgo such a right is a question of fact.