Opinion
CA 03-00408
October 9, 2003.
Appeal and cross appeal from an order of Supreme Court, Onondaga County (Murphy, J.), entered August 14, 2002, which denied plaintiff's motion for summary judgment.
GERMAIN GERMAIN, SYRACUSE, D.J. J.A. CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.
FRANK A. BERSANI, JR., SYRACUSE, FOR DEFENDANTS-RESPONDENTS — APPELLANTS.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said cross appeal be and the same hereby is unanimously dismissed (see Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488; Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, lv denied 82 N.Y.2d 653; see also CPLR 5511) and the order is affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for breach of a written agreement between him and defendant O'Brien Gere Limited. Supreme Court properly denied plaintiff's motion for summary judgment, inasmuch as the agreement is ambiguous and defendants raised issues of fact with respect to its proper interpretation. Whether an agreement is ambiguous is a question of law for the court to determine (see Kass v. Kass, 91 N.Y.2d 554, 566). Here, the provisions of the agreement stating that "the corporation must remain in a cash neutral position" and "[i]ncentive payments and retirement contributions would be paid if the company's performance merited distribution" create an ambiguity concerning whether plaintiff is entitled to any incentive payment under the agreement if the corporation did not remain in a cash neutral position or if its performance did not merit any distribution. Thus, read as a whole, the agreement is ambiguous with respect to plaintiff's entitlement to incentive payments, and extrinsic evidence is admissible to determine the true intent of the parties (see O'Neill v. Town of Fishkill, 134 A.D.2d 487, 488-489). Inasmuch as the parties introduced conflicting extrinsic evidence concerning their understanding and intent with respect to those provisions at the time they entered into the agreement, it is for the trier of fact to resolve the ambiguities in the agreement (cf. Village of Hamburg v. American Ref-Fuel Co. of Niagara, 284 A.D.2d 85, 88, lv denied 97 N.Y.2d 603; Bodwitch v. Allen, 91 A.D.2d 1177, 1178). We note that, while the court's disposition of the motion was correct, to the extent that the court interpreted the meaning of the phrase "remain in a cash neutral position" as a matter of law in rendering its decision, that was error.