Opinion
108 SSM 15.
Decided May 13, 2004.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered October 28, 2003. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Harold Tompkins, J.), which had granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff arranged for shipment of goods from Mexico to New York City. Armed robbers hijacked the goods from trucks on a Mexico City street. Plaintiff filed a claim against defendant insurer under its marine open cargo policy. Defendant denied coverage, and plaintiff commenced a breach of contract action. Defendant moved for summary judgment alleging that plaintiff did not comply with a warranty in the policy that each truck be accompanied by an armed escort.
The Appellate Division majority concluded that, as a matter of law, plaintiff breached the warranty that the truck be accompanied by two equipped escort vehicles; that the breach of the four-guard warranty was also fatal; that in nonmarine cases, a breach of warranty that materially increases the insurer's risk of loss precludes coverage as a matter of law; that plaintiff was not entitled to a partial recovery despite its complete breach of the warranty by limiting its default to the absence of armed guards, when it never provided any guard; and that the complaint was properly dismissed.
Star City Sportswear v. Yasuda Fire Mar. Ins. Co. of Am., 1 AD3d 58, affirmed.
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). 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.