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Star City Sportswear, Inc. v. Yasuda Fire & Marine Insurance of America

2 N.Y. 789 Court N.Y. Decision date 2004-05-13 English

Contents

Majority

p. 745
[814 NE2d 425, 781 NYS2d 255]
Star City Sportswear, Inc., Appellant, v Yasuda Fire & Marine Insurance Company of America, Respondent.
Decided May 13, 2004
p. 746
APPEARANCES OF COUNSEL
Weg & Myers, P.C., New York City (Joshua L. Mallín of counsel), for appellant.
Maloof Browne & Eagan LLC, Rye (Thomas M. Eagan of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs. We agree with the Appellate Division majority that the contract’s warranty clause clearly requires that each escort contain a minimum of two guards. Plaintiffs proof was insufficient to raise a triable issue of fact as to whether it fulfilled that requirement (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 , 562-563 [1980]). Defendant, on the other hand, offered sufficient proof establishing plaintiffs material breach of the warranty clause as a matter of law. Accordingly, defendant’s motion for summary judgment was properly granted.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graefeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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