Hellenic Greek Orthodox Church of St. George v. City of Schenectady

— Appeal from an order of the Supreme Court at Special Term, entered December 14, 1979 in Schenectady County, which granted defendant’s motion to dismiss the complaint. Defendant moved for a dismissal of plaintiff’s complaint demanding specific performance of an agreement to lease property and payment of rent arrearages of $25,000. Special Term granted defendant’s motion pursuant to CPLR 3211 (subd [a], par 7) for plaintiff’s failure to state a cause of action. The crux of this case revolves around the construction of a contract; to wit, whether the agreement between the parties was an option or a lease. The contract in question contains some terms that are indicative of an option and others indicative of a lease. Where a contract contains ambiguities which need to be resolved on the merits by a finder of facts, such issues should not be resolved by pretrial motion (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68). Order reversed, on the law, with costs, and motion to dismiss complaint denied. Main, J.P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.