Opinion
May 7, 1990
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is affirmed, with costs.
Pursuant to a separation agreement entered into by the parties in 1974, the plaintiff executed a deed conveying his share of the marital premises to the defendant subject to the defendant assuming the mortgage. Upon the defendant's remarriage, the house was to be sold and the proceeds evenly shared, with the defendant being reimbursed for the "amortization payments" made by her between the date of the execution of the agreement and the date of closing of title.
We agree with the Supreme Court's determination that since a material issue of fact exists as to the proper interpretation of the term "amortization payment" (i.e., whether it includes mortgage interest and principal or simply principal), the defendant was not entitled to summary judgment (see, Coley v Michelin Tire Corp., 110 A.D.2d 870). Moreover, the court could properly resort to the use of extrinsic evidence in order to resolve the ambiguity in the parties' agreement (see, Lerner v. Lerner, 120 A.D.2d 243, 247). Thompson, J.P., Bracken, Sullivan and Balletta, JJ., concur.