Opinion
2013-03-6
STARS JEWELRY BY A JEWELER CORP., appellant, v. HANOVER INSURANCE GROUP, INC., etc., respondent.
Law Offices of Mitchell J. Devack, PLLC, East Meadow, N.Y., for appellant. Wade Clark Mulcahy, New York, N.Y. (Dennis M. Wade and Steven M. Kaye, Jr., of counsel), for respondent.
Law Offices of Mitchell J. Devack, PLLC, East Meadow, N.Y., for appellant. Wade Clark Mulcahy, New York, N.Y. (Dennis M. Wade and Steven M. Kaye, Jr., of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated August 17, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
“[A] contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself” ( MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640, 645, 884 N.Y.S.2d 211, 912 N.E.2d 43). Accordingly, “ ‘when parties set down their agreement in a clear, complete document, their writing should ... be enforced according to its terms' ” ( Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876, quoting W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639). “A condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in [an] agreement arises' ” ( Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 660 N.E.2d 415, quoting Calamari and Perillo, Contracts § 11–2, at 438 [3d ed.] ). “Express conditions are those agreed to and imposed by the parties themselves,” and they “must be literally performed” ( Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d at 690, 636 N.Y.S.2d 734, 660 N.E.2d 415).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff failed to comply with the record-keeping requirements set forth in the subject insurance policy, which was a clear condition precedent to coverage ( see generally Licht v. New York Indem. Co., 250 N.Y. 211, 164 N.E. 910;Simon v. State Natl. Ins. Co., 47 A.D.3d 701, 702, 848 N.Y.S.2d 880;Globe Jewelry v. Pennsylvania Ins. Co., 72 Misc.2d 563, 564, 340 N.Y.S.2d 295). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.