Commercial Division Blog

Posted: October 6, 2021 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Contracts, Summary Judgment, General Business Law

Summary Judgment for Breach of Contract Denied Where Plaintiff Failed to Show it Satisfied Contractual Condition Precedents to Terminate for Cause

On August 25, 2021, in Turner Towers Tenant Corp. v RCI Plumbing Corp., 2021 NY Slip Op 04774, the Second Department affirmed denial of plaintiff's motion for summary judgment for breach of contract because plaintiff failed to demonstrate that it had satisifed contractual condition precedent for termination for cause, explaining:

RCI failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it, as it failed to demonstrate, prima facie, that it did not breach the contract. In particular, RCI, in submitting, inter alia, a transcript of the deposition testimony of the plaintiff's former president who was, at the time of the deposition, the secretary of the plaintiff's board, failed to eliminate all triable issues of fact as to whether RCI was in breach of the contract (see Roos v King Constr., 179 AD3d 857, 859;Buck Constr. & Dev., Inc. v Hetzel, 165 AD3d 875, 876). Moreover, RCI failed to eliminate all triable issues of fact regarding the plaintiff's compliance with any alleged conditions precedent or provisions of the contract governing the manner in which the plaintiff was to effectuate its termination of the contract with RCI (see Alvarez v Prospect Hosp., 68 NY2d320, 324). Since RCI failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff's opposition papers (see Winegad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The attorneys at Schlam Stone & Dolan LLP frequently advise on breach of contract cases.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning litigating or mediating a contractual dispute.