Opinion
2013-12-4
NANOMEDICON, LLC, respondent, v. RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK, appellant, et al., defendant (and a third-party action).
Scully, Scott, Murphy & Presser, P.C., Garden City, N.Y. (Steven I. Wallach and Peter I. Bernstein of counsel), for appellant. Thompson Hine LLP, New York, N.Y. (Barry M. Kazan and Shaun McElhenny of counsel), for respondent.
Scully, Scott, Murphy & Presser, P.C., Garden City, N.Y. (Steven I. Wallach and Peter I. Bernstein of counsel), for appellant. Thompson Hine LLP, New York, N.Y. (Barry M. Kazan and Shaun McElhenny of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant Research Foundation of State University of New York appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated March 8, 2012, as denied those branches of its motion which were for summary judgment dismissing the first, second, third, and fifth causes of action.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Research Foundation of State University of New York which were for summary judgment dismissing the first, second, third, and fifth causes of action are granted.
The defendant Research Foundation of State University of New York (hereinafter Research Foundation) established, prima facie, that the plaintiff materially breached its licensing agreement with Research Foundation by failing to procure the requisite insurance ( see JT Queens Carwash, Inc. v. 88–16 N. Blvd., LLC, 101 A.D.3d 1089, 1090, 956 N.Y.S.2d 536; WILJEFF, LLC v. United Realty Mgt. Corp., 82 A.D.3d 1616, 1617–1618, 920 N.Y.S.2d 495; 166 Enters. Corp. v. I G Second Generation Partners, L.P., 81 A.D.3d 154, 158, 917 N.Y.S.2d 143; Kyung Sik Kim v. Idylwood, N.Y., LLC, 66 A.D.3d 528, 529, 886 N.Y.S.2d 337; Brainerd Mfg. Co. v. Dewey Garden Lanes, 78 A.D.2d 365, 367, 435 N.Y.S.2d 417). The plaintiff failed to raise a triable issue of fact in opposition ( see Newfield v. General Motors Corp., 84 A.D.2d 548, 549, 443 N.Y.S.2d 239, affd.56 N.Y.2d 818, 452 N.Y.S.2d 570, 438 N.E.2d 103). Contrary to the plaintiff's contention, it was required to obtain insurance when it entered into the licensing agreement in November 2007. In any event, even assuming that the plaintiff was not required to obtain insurance until June 1, 2010, as it claims, there is no dispute that after Research Foundation issued a June 24, 2010, notice of intent to terminate the licensing agreement based, inter alia, on the plaintiff's failure to procure insurance, the plaintiff failed to obtain the mandated insurance within the 60–day cure period.
In light of the fact that the plaintiff committed a material breach, the Supreme Court erred in denying those branches of Research Foundation's motion which were for summary judgment dismissing the first, second, third, and fifth causes of action. Those causes of action include allegations that Research Foundation breached the licensing agreement, whereas the plaintiff did not. The plaintiff, however, is entitled to recovery only if it substantially performed under the terms of the licensing agreement ( see Hadden v. Consolidated Edison Co. of N.Y., 34 N.Y.2d 88, 96, 356 N.Y.S.2d 249, 312 N.E.2d 445; Miller v. Benjamin, 142 N.Y. 613, 617, 37 N.E. 631; Kaye v. Greenspan, 118 A.D.2d 831, 832, 500 N.Y.S.2d 539). Since the plaintiff materially breached the licensing agreement, it cannot establish substantial performance.
The plaintiff's remaining contentions are without merit. MASTRO, J.P., ANGIOLILLO, LEVENTHAL and CHAMBERS, JJ., concur.