Hakes v. Tops Markets, LLCHakes v. Tops Markets, LLC
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered June 17, 2005. The order denied plaintiff‘s motion for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied plaintiff‘s motion for summary judgment on the complaint, seeking a determination that plaintiff legally terminated its agreement with defendant. The agreement at issue provides that, “[i]n the event of a material breach of the terms of [the] agreement by either party, the other party shall have the right to terminate [the] Agreement by written notice to the other party . . . .” Plaintiff contends that it established its entitlement to judgment as a matter of law because it proffered evidence in support of its motion that it gave defendant the requisite written notice of termination. We reject that contention. Plaintiff was also required to establish in support of its motion that defendant breached a material term of the agreement, inasmuch as that was a condition precedent to plaintiff‘s right to terminate the agreement (see generally Blumberg v Florence, 143 AD2d 380, 381 [1988]). Plaintiff failed to do so, and thus failed to establish its entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.