Opinion
(1487) CA 01-00382.
November 9, 2001.
(Appeal from Order and Judgment of Supreme Court, Onondaga County, Stone, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., WISNER, KEHOE AND LAWTON, JJ.
Order and judgment unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted plaintiff's motion for summary judgment on liability on the cause of action for breach of contract. Plaintiff submitted evidentiary proof in admissible form establishing its entitlement to judgment as a matter of law and defendants failed to raise a triable issue of fact in opposition ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Plaintiff established as a matter of law that defendants violated the clear and unambiguous terms of the parties' settlement agreement by unilaterally employing non-unit employees to perform the exclusive duties of plaintiff's unit employees with respect to pretrial and presentence detainees housed by the County of Onondaga. The contention of defendants that their actions were proper under the "management rights" clause of the collective bargaining agreement is raised for the first time on appeal and therefore is not preserved for our review ( see, Fischer v. Zepa Consulting, 263 A.D.2d 946, 947, affd 95 N.Y.2d 66; Gorman v. Ravesi, 256 A.D.2d 1134).