Opinion
December 30, 1992
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Callahan, J.P., Boomer, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Defendant contends that Supreme Court erred in denying his motion for summary judgment dismissing plaintiff's complaint. The language in articles 2 and 3 of the parties' agreement is susceptible to two reasonable interpretations and, therefore, is ambiguous (see, Super Glue Corp. v Avis Rent A Car Sys., 159 A.D.2d 68, 72, lv denied 77 N.Y.2d 801). Because plaintiff submitted extrinsic proof to resolve that ambiguity, a question of fact was presented for the jury's determination and summary judgment was properly denied (see, Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285, 291; Allied Clove Lakes Co. v Demisay, 74 A.D.2d 466, 468-470). Additionally, there exist questions of fact precluding the granting of summary judgment on defendant's counterclaim.