Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered on August 9, 2011.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 22, 2013
PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ
The order denied defendant's motion for summary judgment dismissing the complaint and upon her counterclaim.
ORDERED that the order is affirmed, without costs.
Plaintiff entered into a contract with defendant to purchase defendant's real property. Pursuant to paragraph 12A of the contract, defendant was obligated to "remove the garage and two yard sheds prior to closing." At the closing, the parties entered into an escrow agreement which provided that "the sum of $5,000 [would be held by plaintiff's attorney in escrow] pending the removal of the remaining shed-garage items" by defendant. Plaintiff asserted in the complaint that, while defendant "did remove the garage and two (2) sheds," defendant had "failed to remove the foundation concrete floor from the tool shed, footings and ten (10) . . . wood stumps from the yard" and had failed to restore "the land with filler and dirt to its original condition." As a result, plaintiff's attorney refused to release the $5,000 held in escrow. Plaintiff seeks in this action to recover, among other things, $11,329 as the cost of the removal and restoration work. Defendant counterclaimed for, among other things, the $5,000 held in escrow.
In August 2011, defendant moved for, among other things, summary judgment dismissing the complaint and upon her counterclaim, and argued that it was uncontroverted that she had removed the garage and two sheds as required by the unambiguous language of the written agreements. Plaintiff opposed the motion. By order dated August 8, 2011, the Civil Court denied the motion, finding that there were triable issues of fact which preclude the granting of summary judgment in defendant's favor.
"The best evidence of what parties to a written agreement intend is what they say in their writing" (Slamow v Del Col, 79 NY2d 1016, 1018 ). Parol evidence of the parties' intention may be considered only if the agreement is ambiguous, and the question of whether an agreement is ambiguous is one of law for the court to decide (see Greenfield v Philles Records, 98 NY2d 562, 569 ; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 ). Since the escrow agreement uses the word "items," but fails to delineate what those items are, it is ambiguous regarding exactly what defendant had to remove. Consequently, in view of the existence of triable issues of fact, the Civil Court properly denied defendant's motion.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur. Decision ...