Opinion
May 27, 1988
Appeal from the Supreme Court, Monroe County, Wagner, J.
Present — Dillon, P.J., Boomer, Balio and Lawton, JJ.
Order unanimously affirmed with costs. Memorandum: On August 23, 1984, plaintiffs Poley and Lacagnina, the principal owners of APLAN Holding Company, agreed to the sale of APLAN to the Rochester Community Savings Bank (RCSB). The asset purchase agreement was executed by RCSB Planning Holding Company, a wholly owned subsidiary of RCSB, and provided that RCSB would be jointly liable for any obligations or payments. As part of the entire transaction, RCSB Planning Holding Company executed separate agreements employing Poley and Lacagnina until December 1989. After their termination from employment on September 11, 1986, Poley and Lacagnina commenced this action, seeking, inter alia, amounts due under their employment contracts for their salaries and signing bonuses. Following joinder of issue, plaintiffs sought partial summary judgment, claiming that their conduct was not so "gross and willful" as to warrant their dismissal and that RCSB was jointly liable for the salary and bonus payments.
We conclude that Special Term correctly denied plaintiffs' motion for partial summary judgment. Although Poley and Lacagnina could be dismissed for "gross, willful failure or refusal" to perform their duties, the agreement does not further define what was intended by the terms "gross" and "willful." Since the contract language is not plain and unambiguous, a factual issue exists as to its meaning (see, Amusement Business Underwriters v American Intl. Group, 66 N.Y.2d 878). The provision whereby RCSB agreed to be jointly liable was contained in the asset purchase agreement, not the employment contracts. Construing the conflicting affidavits in a light favorable to defendants (see, Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231; Robinson v Strong Mem. Hosp., 98 A.D.2d 976), a factual issue was raised as to whether the parties intended the assumption of joint liability to apply to obligations contained in the employment agreement thereby precluding summary judgment.
The motion to dismiss this appeal is denied. Although an appeal is mooted by the service of an amended complaint after an appeal is perfected (Smith v Russell Sage Coll., 78 A.D.2d 913, affd 54 N.Y.2d 185), the sufficiency of plaintiff's complaint is not an issue on this appeal.