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

2 N.Y.3d 789 (2004) 814 N.E.2d 425 781 N.Y.S.2d 255

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

Court of Appeals of the State of New York.

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.

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

OPINION OF THE COURT

MEMORANDUM.

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 NY2d 557, 562-563 [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.