ALJ CAPITAL v. DAVID JOSEPH COMPANY (2008)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 19, 2007, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The complaint was properly dismissed on the ground that plaintiffs failed to provide prompt written notice of a “Disallowance,” a condition precedent to their right to demand repayment from defendant under the subject agreement.   The giving of such notice was always within plaintiffs' control, and, despite the lack of explicitly conditional language, was unmistakably required by the agreement's “Cure Period” provision prior to the assertion of a claim for repayment (see National Fuel Gas Distrib. Corp. v. Hartford Fire Ins. Co., 28 A.D.3d 1169, 814 N.Y.S.2d 436 [2006], lv. denied 7 N.Y.3d 713, 824 N.Y.S.2d 606, 857 N.E.2d 1137 [2006] ).   In any event, as the motion court also found, the events cited by plaintiffs did not constitute disallowances within the meaning of the agreement.   We have considered plaintiffs' other arguments and find them unavailing.