| County of Orange v Carrier Corp. |
| 2008 NY Slip Op 09744 [57 AD3d 601] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mCounty of Orange, Respondent, v Carrier Corporation et al.,Appellants. |
—[*1] Keane & Beane, P.C., White Plains, N.Y. (Edward F. Beane of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and breach of warranty, thedefendants Carrier Corporation and Carrier Commercial Service appeal, as limited by their brief, fromso much of an order of the Supreme County, Orange County (Horowitz, J.), entered June 22, 2007, asdenied their motion for summary judgment dismissing, as time-barred, any claim that accrued more thanone year before the commencement of the action, and dismissing any claim for consequential damages.
Ordered that the order is affirmed insofar as appealed from, with costs.
When the language of a contract is ambiguous, its construction presents a question of fact that maynot be resolved by the court on a motion for summary judgment (see Amusement Bus.Underwriters v American Intl. Group, 66 NY2d 878, 880-881 [1985]; DiLorenzo v Estate Motors, Inc., 22 AD3d630, 631 [2005]; Yerushalmi & Assoc.,LLP v Westland Overseas Corp., 21 AD3d 1098 [2005]; DePasquale v Daniel RealtyAssoc., 304 AD2d 613 [2003]). Here, attached to the parties' agreement dated April 3, 2001,was a document entitled "terms and conditions" that, inter alia, confined the limitations period for anycauses of action arising out of the agreement to one year and barred the recovery of consequentialdamages. The defendants failed to establish, prima facie, that the language in the parties' subsequentagreements clearly and unambiguously referred to those "terms and conditions" (DiLorenzo v EstateMotors, Inc., 22 AD3d at 631; see Amusement Bus. v American Intl Group, 66 NY2d at880-881; DePasquale v Daniel Realty Assoc., 304 AD2d 613 [2003]). Nor did thedefendants establish, as a matter of law, that the parties' subsequent agreements [*2]incorporated those "terms and conditions" by reference (see Spiegler v Gerken Bldg. Corp., 35AD3d 715, 717 [2006]; Chiacchia v National Westminster Bank, 124 AD2d 626, 628[1986]). Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing, as time-barred, those claims that had accrued more than one year prior to thecommencement of the action and dismissing any claims for consequential damages, based on provisionsin the terms and conditions document attached to the April 3, 2001 agreement, as issues of fact remainwhich can only be resolved at trial.
The defendants' remaining contention is without merit. Rivera, J.P., Dillon, Covello and McCarthy,JJ., concur.