Opinion
January 9, 1989
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the order and judgment entered April 10, 1987 is modified by deleting therefrom the provisions granting summary judgment to the plaintiff, awarding the plaintiff costs and disbursements, and discharging the escrow agent of all liability upon the deposit of all funds remaining in his possession, and substituting therefor a provision denying the plaintiff's motion for summary judgment and related relief; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated March 10, 1987 is vacated, without costs or disbursements; and it is further,
Ordered that the order entered April 10, 1987 is reversed, without costs or disbursements; and it is further,
Ordered that the order entered June 5, 1987 is modified by deleting therefrom the provision granting the plaintiff's motion for an order directing the Treasurer of Nassau County to pay to the plaintiff one third of the $10,500 previously deposited with him in connection with the settlement proceeds and substituting therefor a provision referring the motion to the trial court; as so modified, the order entered June 5, 1987 is affirmed, without costs or disbursements.
The long-standing test for the grant of summary judgment is whether any triable issues of law or fact are presented. It is a drastic remedy and should not be granted where, as here, any arguable issues remain. "Issue-finding, rather than issue-determination, is the key to the procedure" (Esteve v Abad, 271 App. Div. 725, 727, quoted with approval in Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). From a review of the record we find that it was error for the trial court to have granted summary judgment to the plaintiff.
Where the language of a contract is clear and unambiguous, the intent of the parties must be determined in accordance with that language (Chun Hye Kang-Kim v Feldman, 121 A.D.2d 590). The responsibility of interpreting the contract rests with the court. Modifications of written contracts may be proved circumstantially by the conduct of the parties subsequent to the agreement (Recon Car Corp. v Chrysler Corp., 130 A.D.2d 725, 729).
Although the dissolution agreement at issue is clear on its face, and does not, by its terms, afford the plaintiff a share of the proceeds in question, it may be inferred from the complaint in the Federal action, from which the proceeds derive, that the parties intended a modification of the dissolution agreement. The Supreme Court based its decision to award summary judgment to Chase on the basis that the action was commenced in the name of the former partners as individuals. Further, it stated that any doubts to that effect were dispelled by the affidavit of Lowell.
However, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" (Glick Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 441). The issues presented by the instant record do not appear to be feigned, and the conflicting statements made by the parties in their affidavits clearly give rise to issues of fact which preclude summary judgment.
On the basis of the foregoing, the order and judgment entered April 10, 1987, is modified by deleting therefrom the provision granting summary judgment to the plaintiff, and the related provisions, the order of the same court dated March 10, 1987, is vacated, the ex parte order entered April 10, 1987 is reversed, and the order of the same court entered June 5, 1987 which granted the disbursement of one third of the proceeds derived from the Federal action, is modified as premature. We do not reach the remaining issues. Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.