The "OBLIGATIONS OF MANAGER AND LICENSEE" are set forth in paragraph 4.0 of the contract, and are separate from the "CONSIDERATION" provision set forth in paragraph 3.0 of the contract, pursuant to which defendant was obligated to make monthly payments to plaintiff. "It is well settled that any ambiguity which might exist must be construed against the defendant as drafter of the agreement" ( Bernstein v. Sosnowitz , 198 AD2d 204, 205 [1993] ), which rule of interpretation requires that the notice-to-cure provision of the subject contract apply only to the requirement that plaintiff provide defendant with a notice to cure any default of defendant's "obligations" set forth in paragraph 4.0 of the contract, rather than to his entitlement to timely payment of "consideration" under paragraph 3.0. To require otherwise would, in effect, have the unfair and anomalous effect of permitting defendant to delay each of its monthly payments to plaintiff for 90 days following receipt of a notice-to-cure (see 22 NY Jur 2d, Contracts ยง 218 ).
The defendant wife purportedly waived her interest in the plaintiff husband's estate pursuant to an antenuptial agreement executed by the parties shortly before their marriage in 1987. This agreement cannot be construed as a waiver of the defendant's right to equitable distribution in the event of a divorce ( see Ventimiglia v Ventimiglia, 307 AD2d 993, 994; Carrasco v Carrasco, 301 AD2d 553). Any ambiguity in the wording of the agreement must be construed against the drafter, who in this case was the plaintiff's attorney ( see Ventimiglia v Ventimiglia, supra; Bernstein v Sosnowitz, 198 AD2d 204, 205; Davis v Davis, 193 AD2d 1083). The Supreme Court, after considering the factors set forth in Domestic Relations Law ยง 236 (B) (5) (d), providently determined after trial that the defendant was entitled to an equitable distribution share of "one-third" of the marital assets ( see Price v Price, 69 NY2d 8, 14-17; Scarlett v Scarlett, 35 AD3d 710, 711-712).
The plaintiff purportedly waived her interest in the defendant's estate pursuant to an antenuptial agreement executed by the parties shortly before their marriage in 1981. This agreement cannot be construed as a waiver of the plaintiff's right to equitable distribution in the event of a divorce (see Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193; Matter of Greiff, 92 N.Y.2d 341, 344; Matter of Beckford, 280 A.D.2d 472; Carrasco v. Carrasco, 301 A.D.2d 553). Any ambiguity in the wording of the agreement must be construed against the drafter, who in this case was the defendant's attorney (see Bernstein v. Sosnowitz, 198 A.D.2d 204; Davis v. Davis, 193 A.D.2d 1083). The Supreme Court properly relied on the opinion of the court-appointed evaluator, who employed acceptable valuation methods to determine the value of the defendant's partnership interest (see Ferraro v. Ferraro, 257 A.D.2d 596; Dempster v. Dempster, 236 A.D.2d 582; Matter of Penepent Corp., 198 A.D.2d 782, 783).
Further, significantly, although Empress asserted that it was aware of the potential condemnation of the premises prior to the execution of the parties' agreement, and that the New York City school system was its main "target" from the beginning, the agreement does not address the issue of a commission if the premises were taken by condemnation, and no effect can be given to Empress's unexpressed, subjective intent concerning that issue (see, Ditmars-31 St. Dev. Corp. v. Punia, supra). Indeed, any ambiguity in the agreement must be construed against Empress, which drafted the agreement (see, Bernstein v. Sosnowitz, 198 A.D.2d 204). Finally, in light of evidence, inter alia, that the NYCSCA had identified the subject premises as a potential site for the school as early as 1991, Empress's vague assertions that it showed the premises to certain identified and unidentified public and elected officials at unspecified times is insufficient to raise a triable issue of fact that Empress was the procuring cause of the premises being selected for condemnation (see generally, Pantiago Realty v. Estate of Schrenko, 249 A.D.2d 525; Ackerman v. Dobbs, 181 A.D.2d 704; Norma Reynolds Realty v. Wilczewski, 160 A.D.2d 787).
Great weight should be accorded to a trial court's determinations, particularly where, as here, they rest upon the resolution of issues of credibility and assessment of the weight of the evidence ( see, Amend v. Hurley, 293 N.Y. 587; Levy v. Kurpil, 168 A.D.2d 881, 882; Cordts v. State of New York, 125 A.D.2d 746; Arnold v. State of New York, 108 A.D.2d 1012). Here, the claimant failed to adequately prove his claim that New York State Troopers used excessive force in subduing him after he led them on a high speed chase and resisted arrest ( see, Davis v. State of New York, 203 A.D.2d 234). Inasmuch as the court's determination as to witness credibility was based upon a fair interpretation of the evidence, we decline to disturb it on appeal ( see, Vizzari v. State of New York, 184 A.D.2d 564; Matter of Kaplan v. Werlin, 215 A.D.2d 387, 388; Bernstein v. Sosnowitz, 198 A.D.2d 204). Joy, J.P., Krausman, Florio and McGinity, JJ., concur.
While the agreement does not specifically indicate whether the term "Kapson" refers to the contractor, Kapson Construction Corp., or the developer, Kapson-Northport Development, we note that the agreement uses the specific term "contractor" to refer to "Kapson Construction". Therefore, construing any ambiguity of terms against the petitioner as drafter of the agreement, the term "Kapson" refers to the developer ( see, Bernstein v. Sosnowitz, 198 A.D.2d 204, 205). Since the existence of the contract was premised on the satisfaction of a condition precedent, no contract arises "unless and until the condition occurs" (Calamari and Perillo, Contracts ยง 11-5, at 440 [3d ed]).
The plain meaning of the language used in the notes is obvious. Defendant, who drafted and handwrote both notes, made himself individually and exclusively liable for the sums borrowed from decedent ( see, Bernstein v Sosnowitz, 198 A.D.2d 204, 205). Accordingly, we conclude that Supreme Court erred in denying plaintiff's motion for summary judgment.
In such circumstances, they must be construed against the drafter. Jacobson v. Sassower, 66 NY2d 991 (1985); Bernstein v. Sosnowitz, 198 AD2d 204 (2nd Dep't, 1993). Upon the unequivocal documentary evidence, Plaintiffs are entitled to summary judgment against the Corporate Defendants and the personal guarantor Jerrol Cutler for the balance remaining on the purchase price of their shares, without deduction for subsequent costs incurred or any adjustments the Corporate Defendants may have made pursuant to the Purchase Agreement with Slinin.