Majority
—In an action to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Dutchess County (Bernhard, J.), dated May 24, 1994, as, upon renewal and reargument, adhered to a prior determination which denied its motion for summary judgment and granted the plaintiff’s cross motion for summary judgment.
Ordered that the order is modified, on the law, by deleting therefrom the provision adhering to that portion of the original determination which granted the plaintiff’s cross motion for summary judgment and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
The parties’ materially conflicting allegations concerning the terms of their contract, and the issues of credibility generated by those allegations, create questions of fact which cannot be resolved as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ; Rotuba Extruders v Ceppos, 46 NY2d
Cases cited
- Winegrad v. New York University Medical Center 64 NY2d 851 p. 641
- Ferrer v. Stofsky 204 AD2d 386 p. 642
- Rudnitsky v. Robbins 191 AD2d 488 at 489 p. 642
- Rizzo v. Lincoln Diner Corp. 215 AD2d 546 p. 642