Opinion
May 28, 1993
Appeal from the Supreme Court, Erie County, Howe, J.
Present — Denman, P.J., Pine, Balio, Boomer and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed with costs to defendant in accordance with the following Memorandum: We agree with the conclusion of the IAS Court that the antenuptial agreement executed by the parties on February 17, 1977 is fairly susceptible of more than one reasonable construction (see, Stedman Energy v Lenape Resources Corp., 175 A.D.2d 646, 647). Having determined that the agreement is ambiguous, we construe its language against plaintiff, the party who prepared it (see, Dimino v Dimino, 91 A.D.2d 1185; see generally, 22 N.Y. Jur 2d, Contracts, § 228, at 76) and conclude that it does not apply in case of divorce. We modify the judgment, however, to declare that the agreement executed by the parties is valid and enforceable to the extent that it provides for the property rights of the parties if the parties are married at the time of plaintiff's death.