Opinion
Argued January 20, 2000
February 28, 2000
In an action, inter alia, to recover damages for breach of a covenant not to compete contained in an agreement between the parties, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated January 4, 1999, as denied that branch of their motion which was for summary judgment on the complaint, and the defendant cross-appeals, as limited by his brief, from so much of the same order as granted that branch of the plaintiffs' motion which was to dismiss his fifth and sixth affirmative defenses.
Schapiro Reich, Lindenhurst, N.Y. (Steven M. Schapiro and Perry S. Reich of counsel), for appellants-respondents.
Fulbright Jaworski, LLP, New York, N.Y. (Lawrence W. Boes of counsel), for respondent-appellant.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment on the issue of liability and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.
The covenant not to compete in the parties' agreement, which prohibited them from directly or indirectly owning, leasing, or in any way controlling or operating any "sand and stone extraction business" in a specified area, was not ambiguous. Therefore, the Supreme Court erred when it considered extrinsic evidence in interpreting that provision (see, Chimart Assoc. v. Paul, 66 N.Y.2d 570; Posh Pillows v. Hawes, 138 A.D.2d 472 ; Allied Chem. Corp. v. Alpha Portland Indus., 58 A.D.2d 975, 976-977 ). The defendant's extraction of sand and gravel in the specified area was a clear violation of the covenant.
This court previously found that the defendant's contentions asserted in his fifth and sixth affirmative defenses were without merit (see, Roanoke-Funfgeld I. Irrevocable Trust v. Roanoke Sand Gravel Corp., 248 A.D.2d 455 ).
The question of damages cannot be resolved on this record. Accordingly, the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.