Boulter Carting Co. v. De Perno

72 A.D.2d 939, 421 N.Y.S.2d 483, 1979 N.Y. App. Div. LEXIS 14751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1979
• Status: Published

Opinions

Judgment modified to deny plaintiffs’ motion for summary judgment and, as modified, affirmed, without costs, in accordance with memorandum. Based solely on a reading of the collective bargaining agreement and the stipulation, without the aid of parol evidence, we would concur with Special Term that the plaintiffs are required to make contributions to the New York State Teamsters Conference Pension and Retirement Fund "only on behalf of the employees who are members of Local Union No. 118.” We cannot accept the view, as expressed in the dissent, that the provision in the stipulation requiring employers "to contribute for any and all of [their] regular full-time and any and all other employees covered by this Agreement” obligates them to pay on behalf of all employees in the bargaining unit regardless of union membership. Because this provision in the stipulation as interpreted by appellant and in the dissent is in conflict with what appears to be the clear meaning of paragraphs 7 and 8 of the stipulation and with other provisions of the agreement, an ambiguity is created. The matter is, therefore, remitted to Special Term for a hearing at which the parties may, if so minded, offer parol evidence in aid of the construction of the documents including evidence pertaining to the parties’ practical construction of the agreement and the stipulation as shown by their past actions in rendering performance thereunder. All concur, except Callahan, J., who dissents and votes to reverse the judgment and grant defendant’s motion for summary judgment.