106 A.D.3d 761
N.Y. App. Div.
2013

ACS SYSTEM ASSOCIATES, INC., Appellant, v AMCC CORPORATION, Respondent.

Supreme Court, Appellate Division, Second Department, New York

May 8, 2013

106 AD3d 761 | 964 NYS2d 426

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), dated December 15, 2011, which granted the defendant‘s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the plaintiff‘s claim is subject to the dispute resolution procedure set forth in the parties’ subcontract, and that the plaintiff failed to comply with this procedure (see Moretrench Am. Corp. v Liberty Mut. Ins. Co., Sup Ct, Kings County, Feb. 24, 2009, Pfau, J., index No. 3944/08). In opposition, the plaintiff failed to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court properly granted the defendant‘s motion for summary judgment dismissing the complaint.

The plaintiff‘s contention that the defendant is estopped from raising the dispute resolution procedure as a defense is improperly raised for the first time on appeal (see Ferreira v County of Orange, 34 AD3d 724, 725 [2006]; Crossland Sav., FSB v Friedman, 216 AD2d 351, 352 [1995]). Mastro, J.P., Chambers, Lott and Sgroi, JJ., concur.