Opinion
April 3, 1987
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Order unanimously modified on the law to deny plaintiff's motion for summary judgment and as modified affirmed without costs, and judgment entered thereon vacated. Memorandum: The court properly denied defendant's motion for summary judgment. However, it was error for the court to grant summary judgment to plaintiff. There is a question of fact whether defendant occupied the premises during the period at issue pursuant to an agreement between defendant and plaintiff's agent rendering paragraph three of the lease inapplicable in the circumstances. If such an agreement was made, there is a need for further exploration of its terms and conditions.