Opinion
(1515) CA 01-01502
December 21, 2001.
(Appeal from Order and Judgment of Supreme Court, Oneida County, Shaheen, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HAYES AND HURLBUTT, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Plaintiff commenced this breach of contract action seeking payment due under a "Coldmilling and Resurfacing Program" contract between the parties. Supreme Court properly denied plaintiff's motion for summary judgment on the complaint, but erred in granting defendant's cross motion for summary judgment dismissing the complaint. Although the court properly determined that the payment provision in the contract is ambiguous because there is more than one reasonable interpretation of that provision ( see generally, Chimart Assocs. v. Paul, 66 N.Y.2d 570, 572-573; St. Mary v. Paul Smith's Coll. of Arts Sciences, 247 A.D.2d 859), the court erred in resolving that ambiguity in the contract in defendant's favor. "If there is ambiguity in the terminology used * * * and determination of the intent of the parties depends on credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury" ( Hartford Acc. Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172; see, Airco Alloys Div., Airco Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 77). Here, both parties submitted extrinsic evidence supporting their conflicting interpretations of the payment provision in the contract, and thus summary judgment is precluded ( see, St. Mary v. Paul Smith's Coll. of Arts Sciences, supra, at 860).
Contrary to defendant's contention, the various clauses in the contract requiring plaintiff to examine the forms and specifications of the contract do not preclude plaintiff from contesting defendant's interpretation of the payment provision in the contract ( cf., Lake Constr. Dev. Corp. v. City of New York, 211 A.D.2d 514, 515). In addition, an ambiguous payment provision is not an inherent business risk that was assumed by plaintiff, requiring plaintiff to accept defendant's interpretation of that provision ( cf., Balaban-Gordon Co. v. Brighton Sewer Dist. No. 2, 41 A.D.2d 246, 249). Finally, contrary to the further contention of defendant, its engineer does not "have the power to construe the [payment provision of the] contract" ( Davis, Inc. v. Merritt-Chapman Scott Corp., 27 A.D.2d 114, 118).
We therefore modify the order and judgment by denying the cross motion and reinstating the complaint.