SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

413 

CA 16-01566 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ. 

 

O’BRIEN & GERE, INC. OF NORTH AMERICA, 

PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

G.M. MCCROSSIN, INC., DEFENDANT-RESPONDENT. 

 

RIVETTE & RIVETTE, P.C., SYRACUSE (FRANCIS R. RIVETTE OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered December 17, 2015. The order

granted defendant’s motion for partial summary judgment on the issue

of liability. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order that granted

defendant’s motion for partial summary judgment with respect to

liability on defendant’s first counterclaim, for breach of contract.

As a preliminary matter, we conclude that plaintiff waived its right

to compel arbitration by its acceptance of the judicial forum, i.e.,

by commencing a declaratory judgment action, participating in

discovery throughout the four years of this litigation, and filing the

note of issue (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d

363, 371-372, rearg denied 5 NY3d 746; Cunningham v Horning Constr.,

309 AD2d 1187, 1188).

We further conclude that Supreme Court properly granted

defendant’s motion. Plaintiff contends that, under section 10 of the

contract, it was permitted to terminate the contract without following

the notice provisions set forth in section 19 of the contract. We

reject that contention. “It is well settled that a contract must be

read as a whole to give effect and meaning to every term . . . Indeed,

[a] contract should be interpreted in a way [that] reconciles all [of]

its provisions, if possible” (Maven Tech., LLC v Vasile, 147 AD3d

1377, ___ [internal quotation marks omitted]; see DiPizio Constr. Co.,

Inc. v Erie Canal Harbor Dev. Corp., 120 AD3d 905, 906). “ ‘To be

entitled to summary judgment, the moving party has the burden of

establishing that its construction of the [contract] is the only
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CA 16-01566 

construction [that] can fairly be placed thereon’ ” (Maven Tech., LLC, 

147 AD3d at ___; see DiPizio Constr. Co., Inc., 120 AD3d at 906). 

Here, section 10 of the contract expressly incorporates the terms of

section 19, under which plaintiff was required to give defendant 10

days’ written notice before terminating the contract for cause. 

Section 19 further provided that, if plaintiff improperly terminated

the contract for cause, “the termination shall be deemed to be a

termination for the convenience” of plaintiff, and would entitle

defendant to damages.

We also reject plaintiff’s contention that it satisfied the

notice requirements contained in section 19 by giving defendant oral

notice that it intended to terminate the contract. “ ‘Where a

contract provides that a party must fulfill specific conditions

precedent before it can terminate the agreement, those conditions are

enforced as written and the party must comply with them’ ” (Summit

Dev. Corp. v Fownes, 74 AD3d 563, 563). The contract specifically

required plaintiff to give defendant 10 days’ written notice in order

to terminate the contract for cause. Because it is undisputed that

plaintiff did not strictly comply with the written notice requirement

before it terminated the contract, the court properly determined that

the termination must “be deemed to be a termination for the

convenience” of plaintiff.

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court