Opinion
2016–872 OR C
01-18-2018
Lawrence DUMAIN, Doing Business as Dumains Haven and Dumains Haven Farm, Respondent, v. Anne MCDONALD, Appellant.
Jasper J. Nzedu, Esq., for appellant. Joseph A. Faraldo, Esq., for respondent.
Jasper J. Nzedu, Esq., for appellant.
Joseph A. Faraldo, Esq., for respondent.
PRESENT: ANTHONY MARANO, P.J., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment is affirmed, without costs.
In this action to recover for defendant's alleged breach of a written contract in which defendant had agreed to breed her mare during the 2013 breeding season, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered October 2, 2015, the City Court granted plaintiff's motion and denied defendant's cross motion, finding that defendant had breached the contract by failing to timely notify plaintiff that her mare was unfit to be bred during the 2013 breeding season. Defendant's appeal from the order is deemed to be from the judgment subsequently entered on January 21, 2016 (see CPLR 5501 [c] ).
In February 2013, the parties executed a contract in which defendant agreed to breed her mare, Mountain Breez, with plaintiff's stallion, Explosive Matter, during the 2013 breeding season, and to pay plaintiff a $5,000 stud fee if the breeding resulted in a live birth. The contract also provided (1) that defendant was to make her mare available for breeding through July 1, 2013 (the parties appear to agree that this date was changed to July 6, 2013 even though the parties did not amend the written contract accordingly); (2) that if the mare was not made available for breeding, defendant had to pay plaintiff 100% of the $5,000 stud fee unless the mare or stallion died or became unfit to be bred, or unless the mare was excused, in writing, by plaintiff, in which case the contract was null and void; and (3) that if the mare was claimed to be unfit to be bred, that determination had to be supported by a "veterinarian certificate," and defendant was required to "immediately notify" plaintiff, in writing, that the mare was unfit.
Plaintiff alleged in his supporting affidavit that he had commenced this action because defendant had not paid him the $5,000 contract fee which was due him as defendant failed to make her mare available for breeding during the 2013 breeding season and failed to inform him, during the season, that the mare was unfit to be bred.
A review of the record indicates that the City Court properly determined that the contract terms were clear and unambiguous, and that plaintiff had established his prima facie entitlement to summary judgment (see Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395 [1957] ). The burden then shifted to defendant to establish the existence of a triable issue of fact (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ).
In opposition to plaintiff's motion and in support of her cross motion, defendant appears to be arguing that her mare was unfit to be bred and that, under the contract, notification that the mare was unfit to be bred did not have to be provided during the 2013 breeding season, but could be provided thereafter, which is what she did. This is a narrow and constrained interpretation of the contract terms. Giving practical interpretation to the contract language and the parties' reasonable expectations (see Anita Babikian, Inc. v. TMA Realty, LLC , 78 AD3d 1088, 1090 [2010] ), it is clear that defendant had to "immediately notify" defendant, during the 2013 breeding season, in writing, that the mare was unfit to be bred, which defendant, admittedly, failed to do. Consequently, defendant failed to raise a triable issue of fact to rebut plaintiff's prima facie case and, thus, pursuant to the contract, plaintiff was entitled to recover 100% of the stud fee.
Accordingly, the judgment is affirmed.
MARANO, P.J., BRANDS and RUDERMAN, JJ., concur.