        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
                                 -2-                           413
                                                         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
