| Spears v Spears Fence, Inc. |
| 2009 NY Slip Op 01791 [60 AD3d 752] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Janet Spears, Also Known as Janet Brick,Appellant-Respondent, v Spears Fence, Inc., et al.,Respondents-Appellants. |
—[*1] Feerick Lynch MacCartney, PLLC, South Nyack, N.Y. (Donald J. Feerick, Jr., and JenniferM. Feerick of counsel), for respondents-appellants.
In an action, inter alia, for a judgment declaring the parties' rights with regard to theproceeds of a specified life insurance policy, the plaintiff appeals, as limited by her notice ofappeal and brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.),dated October 2, 2007, as denied that branch of her cross motion which was for summaryjudgment on her second cause of action, and the defendants cross-appeal from so much of thesame order as denied that branch of their motion which was for summary judgment dismissingthe complaint.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
A broad general release will be given effect regardless of the parties' unexpressed intentions,but may not be read to cover matters which the parties did not desire or intend to dispose of (see Rotondi v Drewes, 31 AD3d734, 735 [2006]; see also Cahill v Regan, 5 NY2d 292, 299 [1959]). "While themeaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and thedetermination of the parties' intent depends upon the credibility of extrinsic evidence or a choiceamong inferences to be drawn from extrinsic evidence, then the issue is one of fact"(Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 [1985]; see Joseph v Rubinstein Jewelry Mfg. Co.,Inc., 18 AD3d 615, 615 [2005]). Here, such an issue of fact exists as to whether theplaintiff and Edward J. Spears (hereinafter the decedent) intended the waiver clause in article Vof a matrimonial [*2]stipulation of settlement between them toapply to the proceeds of the subject life insurance policy insuring the decedent, which wasowned by the defendant Spears Fence, Inc. (hereinafter the corporation), or whether the proceedsof the policy were to be governed by paragraph 5 of article IX of the matrimonial stipulation ofsettlement, which concerned the rights of the plaintiff and the decedent in the corporation.Accordingly, the Supreme Court properly denied that branch of the plaintiff's cross motionwhich was for summary judgment on her second cause of action, in which she sought a judgmentdeclaring, in effect, that she was entitled to 40% of the life insurance proceeds. For the samereason, the court properly denied that branch of the defendants' motion which was for summaryjudgment dismissing the second cause of action.
The defendants' contention that the decedent's estate is entitled to summary judgmentdeclaring it the owner of 60% of the subject life insurance proceeds was improperly raised forthe first time in the defendants' reply papers (see Keitel v Kurtz, 54 AD3d 387 [2008]).
The Supreme Court properly denied that branch of the defendants' motion which was forsummary judgment dismissing the first cause of action seeking disbursement of the remainingfunds in the corporate escrow account.
In light of our determination, we need not reach the plaintiff's remaining contentions. Fisher,J.P., Florio, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op 33167(U).]