Chiusano v. Chiusano

55 A.D.3d 425, 868 N.Y.S.2d 168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered January 15, 2008, which, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and on his counterclaim for attorneys’ fees, unanimously affirmed, without costs.

The court correctly rejected defendant’s contention that the term “MERC seat” in the handwritten paragraph of the modification of the parties’ separation agreement refers only to the right to trade on the floor of the mercantile exchange. However, it erred in finding as a matter of law that “MERC seat” includes both the right to trade and the share of NYMEX stock. The term is reasonably susceptible to more than one interpretation (see NFL Enters. LLC v Comcast Cable Communications, LLC, 51 AD3d 52 [2008]; LoFrisco v Winston & Strawn LLP, 42 AD3d 304, 307-308 [2007]). Because the extrinsic evidence in the record is insufficient to resolve the ambiguity, the parties’ intent must be determined at trial (see Hambrecht & Quist Guar. Fin., LLC v El Coronado Holdings, LLC, 27 AD3d 204 [2006]; LoFrisco at 308). Concur—Lippman, P.J., Andrias, Saxe, Sweeny and DeGrasse, JJ.