ALJ Capital I, L.P. v David J. Joseph Co.

ALJ Capital I, L.P. v David J. Joseph Co. 2008 NY Slip Op 00987 [48 AD3d 208] February 5, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

ALJ Capital I, L.P., et al., Appellants,
v
The David J. Joseph Company, Respondent.

—[*1] Richards Kibbe & Orbe LLP, New York City (Brian S. Fraser of counsel), for appellants.

Cole, Schotz, Meisel, Forman & Leonard, P.A., New York City (Steven L. Klepper of counsel), for respondent.

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 AD3d 1169 [2006], lv denied 7 NY3d 713 [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. Concur—Lippman, P.J., Mazzarelli, Friedman, Sweeny and Moskowitz, JJ. [See 15 Misc 3d 1127(A), 2007 NY Slip Op 50867(U).]