Freeman Lumber Co. v. a.C. Dutton Lumber Corp. , 632 N.Y.S.2d 965 ( 1995 )

—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 223; Zilm v Koch, 211 AD2d 675; Ferrer v Stofsky, 204 AD2d 386; Rudnitsky v Robbins, 191 AD2d 488, 489). Under these circumstances, the plaintiffs cross motion for summary judgment should have been denied (see, Rizzo v Lincoln Diner Corp., 215 AD2d 546; Greenberg v Green, 197 AD2d 502; Bellavia v Greenough, 193 AD2d 712). Balletta, J. P., Thompson, Ritter and Florio, JJ., concur.