Opinion
May 14, 1981
Appeal from an order of the Supreme Court at Special Term, entered December 14, 1979 in Schenectady County, which granted defendant's motion to dismiss the complaint. Defendant moved for a dismissal of plaintiff's complaint demanding specific performance of an agreement to lease property and payment of rent arrearages of $25,000. Special Term granted defendant's motion pursuant to CPLR 3211 (subd [a], par 7) for plaintiff's failure to state a cause of action. The crux of this case revolves around the construction of a contract; to wit, whether the agreement between the parties was an option or a lease. The contract in question contains some terms that are indicative of an option and others indicative of a lease. Where a contract contains ambiguities which need to be resolved on the merits by a finder of facts, such issues should not be resolved by pretrial motion (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 A.D.2d 68). Order reversed, on the law, with costs, and motion to dismiss complaint denied. Main, J.P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.