"When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment" (Hong v Renval Constr., LLC, 219 A.D.3d 593, 594 [internal quotation marks omitted]; see Shadlich v Rongrant Assoc., LLC, 66 A.D.3d 759, 760). "A contract is ambiguous if the terms are susceptible to more than one reasonable interpretation" (Hong v Renval Constr., LLC, 219 A.D.3d at 594 [internal quotation marks omitted]; see Archstone v Tocci Bldg. Corp. of N.J., Inc., 101 A.D.3d 1062, 1064). Here, an ambiguity exists as to the sum due on the note.
"When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment" ( Shadlich v. Rongrant Assoc., LLC, 66 A.D.3d 759, 760, 887 N.Y.S.2d 228 ; seeSabre Real Estate Group, LLC v. JQ1 Assoc., LLC, 204 A.D.3d 1051, 1052, 165 N.Y.S.3d 336 ; Five Corners Car Wash, Inc. v. Minrod Realty Corp., 134 A.D.3d 671, 672, 20 N.Y.S.3d 578 ). "A contract is ambiguous if the terms are susceptible to more than one reasonable interpretation" ( Archstone v. Tocci Bldg. Corp. of N.J., Inc., 101 A.D.3d 1062, 1064, 956 N.Y.S.2d 499 ; seeEvans v. Famous Music Corp., 1 N.Y.3d 452, 458, 775 N.Y.S.2d 757, 807 N.E.2d 869 ). Contrary to the plaintiff's contention, an ambiguity exists as to whether the Assignment provided that the plaintiff may be liable for the sums due on the note to the extent of the proceeds from the sale of the property.
ORDERED that one bill of costs is awarded to the defendant Eldorado Stone, LLC, payable by the plaintiffs and Perkins Eastman Architects, Inc. This appeal and cross-appeal are amongst several involving water intrusion and damage at a newly constructed apartment complex ( see Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 101 A.D.3d 1057, ––– N.Y.S.2d ––––;Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 101 A.D.3d 1062, 956 N.Y.S.2d 499 [both decided herewith] ). The plaintiffs, the owners of the apartment complex, contracted with the defendant Tocci Building Corporation of New Jersey, Inc. (hereinafter Tocci), to act as the general contractor on the project.
ORDERED that one bill of costs is awarded to Universal Forest Products. This appeal is one of several involving water intrusion and damage at a newly constructed apartment complex ( see Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 101 A.D.3d 1059, 956 N.Y.S.2d 496 [Appellate Division Docket No. 2011–02858]; Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 101 A.D.3d 1062, 956 N.Y.S.2d 499 [Appellate Division Docket No. 2011–02859] [both decided herewith] ). The plaintiffs, the owners of the apartment complex, commenced this action against the general contractor, Tocci Building Corporation of New Jersey, Inc. (hereinafter Tocci), alleging that severe water intrusion required them to reconstruct the buildings, terminate certain leases, and defend against personal injury and property claims brought by the apartment complex's tenants.
"In determining a coverage dispute, [the court] look[s] to the specific language used in the relevant policies, which must be interpreted according to common speech and consistent with the reasonable expectation of the average insured at the time of contracting, with any ambiguities construed against the insurer and in favor of the insured" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 37 N.Y.3d 552, 561 [2021][citations and internal quotation marks omitted]; see Klein v State Farm Ins. Co., 198 A.D.3d 741, 742 [2d Dept 2021]). A policy term is ambiguous if it is "susceptible to more than one reasonable interpretation" (Archstone v Tocci Bldg. Corp, of New Jersey, Inc., 101 A.D.3d 1062, 1064 [2d Dept 2012] [citation omitted]). "[E]xclusions or exceptions from coverage must be specific and clear in order to be enforced" (Klein, 198 A.D.3d at 742 [internal quotation marks omitted]; see Hudson Shore Assoc., L.P. v Praetorian Ins. Co., 172 A.D.3d 830, 831 [2d Dept 2019]).
"Whether or not a contract provision is ambiguous is a question of law to be resolved by a court" (Van Wagner Adv. Corp. v S & M Enterprises, 67 N.Y.2d 186, 191 [1986] [citation omitted]). "A contract is ambiguous if the terms are susceptible to more than one reasonable interpretation" (Archstone v Tocci Bldg. Corp. of New Jersey, Inc., 101 A.D.3d 1062, 1064 [2d Dept 2012] [citation omitted]).
It is well-settled that a contract must be construed in accordance with the parties' intent, which is generally discerned from the four corners of the contract document (Archstone v. Tocci Build. Corp. of New Jersey, Inc., 101 AD3d 1062, 1064 [2012] ). A contract that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms (Smith v. Ebenezer Baptist Church, Inc., 97 AD3d 809, 810 [2012] ).
This Court recognizes that Plaintiff's Exhibit 1 appears on its face to be a contract and a written agreement that is complete, clear and unambiguous on its face ordinarily should be enforced according to the plain meaning of its terms ( See Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 101 AD3d 1062 [2d Dept 2012] ). However, in the absence of the person who wrote in the terms and the very credible testimony of the Defendant that she did not realize that this was a contract when she signed it, that the document was incomplete at that time and materially changed thereafter, and that she had no intention of entering into a contract, this Court finds that no contract existed between the Defendant and either the store or Plaintiff.