Opinion
June 3, 1996
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the order and judgment is modified, on the law, by deleting therefrom (1) the fourth and fifth decretal paragraphs and (2) the provision of the sixth decretal paragraph which granted the plaintiff's cross motion for summary judgment, and substituting therefor a provision in the sixth decretal paragraph denying the cross motion; as so modified, the order and judgment is affirmed, without costs or disbursements.
The language contained in paragraph 3 (c) of the parties' Memorandum Agreement is ambiguous with regard to whether the 8% midnight shift pay differential applies immediately upon an employee's return to active duty "after 18 days of combined sick days and LOD absences cumulative or otherwise". In light of the foregoing, it was improper for the Supreme Court to grant the plaintiff's cross motion for summary judgment in its favor ( cf., Namad v. Salomon, Inc., 74 N.Y.2d 751). Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.