| 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 ยง 431. |
| As corrected through Wednesday, September 1, 2004 |
| 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.
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.