Opinion
April 15, 1994
Appeal from the Supreme Court, Erie County, Howe, J.
Present — Green, J.P., Pine, Lawton, Callahan and Boehm, JJ.
Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: During their marriage the parties entered into an agreement concerning their respective interests in tax sheltered annuities and real property. The agreement provided that, "in consideration of [defendant] waiving any rights to" the tax sheltered annuities, plaintiff "hereby agrees to waive any claim which she may have to any real property in which [defendant] is in title either with [plaintiff], alone, or with any third party." Over 18 months after the agreement was executed, plaintiff commenced an action for divorce. A dispute arose concerning the effect of the agreement on the equitable distribution of the parties' property, particularly the present marital residence. That property was purchased approximately 10 months after they entered into their agreement. Supreme Court granted defendant's motion for a judgment declaring that the agreement "is a valid and enforceable contract whereby plaintiff has waived any claim she may have to the marital residence at 5594 Coachman's Lane and defendant has waived any claim to tax sheltered annuities."
We disagree. In our view, the agreement is fairly susceptible to more than one reasonable interpretation (see, Davis v Davis, 193 A.D.2d 1083). Because the agreement does not explicitly provide for property acquired in the future, it is not clear whether the parties intended plaintiff's waiver of her interest in real property to extend to the Coachman's Lane property, the present marital residence. We remit the matter, therefore, to Supreme Court for a hearing to determine the parties' intention at the time they entered into the agreement (see, Steckler v Steckler, 78 A.D.2d 818; Jones v Rosenstein, 73 A.D.2d 909).