STAR CITY SPORTSWEAR INC v. YASUDA FIRE MARINE INSURANCE COMPANY OF AMERICA (2004)

Court of Appeals of New York.

STAR CITY SPORTSWEAR, INC., Appellant, v. YASUDA FIRE & MARINE INSURANCE COMPANY OF AMERICA, Respondent.

Decided: May 13, 2004

Weg & Myers, P.C., New York City (Joshua L. Mallin 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. Plaintiff's 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 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Defendant, on the other hand, offered sufficient proof establishing plaintiff's material breach of the warranty clause as a matter of law. Accordingly, defendant's motion for summary judgment was properly granted.

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.

MEMORANDUM.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

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