DePasquale v. Daniel Realty Associates

Apr 14, 2003
Versions:304 A.D.2d 613
757 N.Y.S.2d 477

In an action, inter alia, for an accounting, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered December 21, 2001, as denied his motion for summary judgment. Justice Smith has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that when the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 [1985]; Reiner v Wenig, 269 AD2d 379 [2000]; Federated Assoc. v Pergament Distribs., 240 AD2d 622 [1997]; Icon Motors v Empire State Datsun, 178 AD2d 463 [1991]). Here, the relevant provisions of the partnership agreement are unclear and ambiguous as to whether the defendants had the right to terminate the plaintiff’s partnership interest under the facts presented. Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment as issues of fact remain which can only be resolved at trial (see Reiner v Wenig, supra; Federated Assoc. v Pergament Distribs., supra; Icon Motors v Empire State Datsun, supra).

In light of the foregoing, the parties’ remaining contentions need not be reached. Ritter, J.P., Feuerstein, Smith and Luciano, JJ., concur.