Opinion
March 11, 1996
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the appeal from the order entered November 22, 1994, is dismissed, as that order was superseded by the order entered March 24, 1995, made upon reargument; and it is further,
Ordered that the order entered March 24, 1995, is reversed insofar as appealed from, upon reargument, the order entered November 22, 1994 is vacated, and the defendants' motion to dismiss the complaint is denied; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The plaintiff, a partner of the defendants, brought this action to recover the proceeds of an alleged loan made to the partnership. The defendants moved to dismiss the action, asserting, in essence, that the alleged loan was in fact a capital contribution. The defendants argued, among other things, that the partnership agreement barred loans from entities other than lending institutions and that the only way in which a partner could contribute money to the partnership was by way of a capital contribution. The Supreme Court agreed with the defendants' arguments and granted the motion to dismiss upon the grounds that the partnership agreement furnished a complete defense founded upon documentary evidence (see, CPLR 3211 [a] [1]). We now reverse.
The partnership agreement does not by its terms clearly rule out loans by partners to the partnership. Accordingly, its provisions are subject to interpretation and inquiry as to the intent of the partners who entered into the agreement. For that reason, summary judgment is inappropriate (see generally, Jackson Hgts. Med. Group v Complex Corp., 222 A.D.2d 409; Icon Motors v Empire State Datsun, 178 A.D.2d 463; see also, 38 Town Assocs. v Barr, 225 A.D.2d 613 [decided herewith]).
Moreover, apart from the terms of the agreement, there are questions of fact as to whether the monies advanced were either loans or capital contributions based on the surrounding circumstances and the conduct of the parties (see, e.g., BenDashan v Plitt, 58 A.D.2d 244).
The defendants' remaining arguments are premature at this point. Rosenblatt, J.P., Ritter, Copertino and Goldstein, JJ., concur.