Lamar Exploration Corp. v. Masterson

Order unanimously affirmed without costs. Memorandum: Defendant contends that Supreme Court erred in denying his motion for summary judgment dismissing plaintiffs complaint. The language in articles 2 and 3 of the parties’ agreement is susceptible to two reasonable interpretations and, therefore, is ambiguous (see, Super Glue Corp. v Avis Rent A Car Sys., 159 AD2d 68 , 72, lv denied 77 NY2d 801 ). Because plaintiff submitted extrinsic proof to resolve that ambiguity, a question of fact was presented for the jury’s determination and summary judgment was properly denied (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285 , 291; Allied Clove Lakes Co. v Demisay, 74 AD2d 466 , 468-470). Additionally, there exist questions of fact precluding the granting of summary judgment on defendant’s counterclaim. (Appeal from Order of Supreme Court, Erie County, Francis, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Lawton and Davis, JJ.