ALJ Capital I, L.P. v. David J. Joseph Co.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 19, 2007, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. The complaint was properly dismissed on the ground that plaintiffs failed to provide prompt written notice of a “Disallowance,” a condition precedent to their right to demand repayment from defendant under the subject agreement. The giving of such notice was always within plaintiffs’ control, and, despite the lack of explicitly conditional language, was unmistakably required by the agreement’s “Cure Feriod” provision prior to the assertion of a claim for repayment (see National Fuel Gas Distrib. Corp. v Hartford Fire Ins. Co., 28 AD3d 1169 [2006], lv denied 7 NY3d 713 [2006]). In any event, as the motion court also found, the events cited by plaintiffs did not constitute disallowances within the meaning of the agreement. We have considered plaintiffs’ other arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Friedman, Sweeny and Moskowitz, JJ. [See 15 Misc 3d 1127(A), 2007 NY Slip Op 50867(U).]