| New Plan of Hillside Vil., LLC v Surrette |
| 2013 NY Slip Op 05052 [108 AD3d 512] |
| July 3, 2013 |
| Appellate Division, Second Department |
| New Plan of Hillside Village, LLC,Appellant, v John Surrette et al., Respondents. |
—[*1] Kevin J. Fitzgerald, P.C., Smithtown, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Farneti, J.), dated August 8, 2011, as denied that branch of its motion whichwas, in effect, for summary judgment on the first and second causes of action in thecomplaint, and, upon searching the record, awarded summary judgment to the defendantsdismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereofwhich searched the record and awarded summary judgment to the defendants dismissingthe complaint; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
In April 1996, the plaintiff's predecessor-in-interest rented commercial space toSelden Specialty Shop (hereinafter Selden Shop) pursuant to a lease with a term of 15years. In November 1996, Selden Shop assigned its rights under the lease to thedefendants, John Surrette and Paul A. Zysett, the principals of J & P Specialty Cards, Inc.(hereinafter J & P). The defendants subsequently assigned the lease to J & P, and J & Pthereafter defaulted on its rent obligation under the lease. The plaintiff then commenceda summary proceeding against J & P and obtained a judgment against it for the amount ofthe unpaid rent. Thereafter, the plaintiff commenced this action against the defendants,inter alia, asserting claims sounding in breach of contract, account stated, and quantummeruit. Insofar as relevant to this appeal, the plaintiff moved, in effect, for summaryjudgment on the first and second causes of action in the complaint. The Supreme Courtdenied the motion and, upon searching the record, awarded summary judgment to thedefendants dismissing the complaint.
Contrary to the plaintiff's contention, the denial of its motion, in effect, for summaryjudgment on the first and second causes of action was proper. The plaintiff failed tomake a prima facie showing of its entitlement to judgment as a matter of law, since it isunclear from the provisions of the lease and assignment upon which the plaintiff relieswhether the parties intended that the defendants would assume continuing liability for theperformance of the lease obligations following [*2]theirassignment of their interest to J & P. "When the language of a contract is ambiguous, itsconstruction presents a question of fact that may not be resolved by the court on a motionfor summary judgment" (Shadlich v Rongrant Assoc., LLC, 66 AD3d 759, 760[2009]; see generally Vale v221 Thompson, LLC, 82 AD3d 754 [2011]; County of Orange v Carrier Corp., 57 AD3d 601, 602[2008]). For the same reason, however, the Supreme Court erred in searching the recordand awarding summary judgment to the defendants dismissing the complaint. Adetermination of whether the defendants may be held liable for the default of J & P mustawait further proceedings in this action. Mastro, J.P., Leventhal, Sgroi and Miller, JJ.,concur.