Star City Sportswear v Yasuda Fire & Marine Insurance Company of America

Star City Sportswear v Yasuda Fire & Mar. Ins. Co. of Am. 2004 NY Slip Op 03860 [2 NY3d 789] May 13, 2004 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2004

[*1] Star City Sportswear, Inc., Appellant,
v
Yasuda Fire & Marine Insurance Company of America, Respondent.

Decided May 13, 2004

Star City Sportswear v Yasuda Fire & Mar. Ins. Co. of Am., 1 AD3d 58, affirmed.

APPEARANCES OF COUNSEL

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

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.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and [*2]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.