Yanuck v. Simon Paston & Sons Agency, Inc. , 618 N.Y.S.2d 295 ( 1994 )

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered April 28, 1994, which denied defendants’ motion for partial summary judgment pursuant to CPLR 3212 dismissing portions of the first and third causes of action of plaintiffs complaint and which denied plaintiffs cross motion for, inter alia, summary judgment, unanimously affirmed, without costs.

The IAS Court properly determined that the parties’ respective motions for summary judgment were precluded by triable issues of fact with respect to whether the parties intended their Sales Agreement to extinguish plaintiffs accrued claims for profit sharing and participation income under the prior Joint Venture Agreement. The Sales Agreement, while referring to certain provisions of the prior Joint Venture Agreement, is nevertheless silent as to the plaintiffs accrued claims to profit sharing and participation income and therefore susceptible to the parties’ varying interpretations. The parties sharply dispute whether they, in fact, intended the Sales Agreement to extinguish the plaintiffs accrued claims to profit sharing and participation inc%ne under the Joint Venture Agreement.

Although on a motion for summary judgment based upon a written contract, the construction of an unambiguous contract is for the court to pass on, and circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered when the intention of the parties can be gathered from the instrument itself (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162-163), nevertheless, where, as here, interpretation of contract terms or provisions is susceptible to at least two reasonable interpretations, and intent must be gleaned from disputed evidence or from inferences outside the written words, it becomes an issue of fact that must be resolved by trial (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880-881). Concur—Ellerin, J. P., Rubin, Nardelli and Williams, JJ.