Durban v. Smith

—In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Rockland County (Miller, J.), entered March 31, 1997, which, upon (1) an order of the same court, dated September 6, 1996, granting the plaintiff’s motion for summary judgment on the issue of liability, and (2) an order of the same court, dated February 24, 1997, confirming a Referee’s report on damages and directing the entry of judgment against them, is in favor of the plaintiff and against them in the principal sum of $116,000. Ordered that the judgment is reversed, on the law, with costs, the orders are vacated, the plaintiff’s motion for summary judgment is denied, and the complaint is reinstated. The parties’ agreement dated January 31, 1989, is ambiguous and unclear, and presents issues of fact which cannot be resolved on the record before us (see, Media Boosters v Prelude Prods., 75 AD2d 577; cf., Bianculli v Bianculli, 242 AD2d 647). There are triable issues of fact with respect to, inter alia, (1) whether the agreement was intended to constitute a loan or an equity investment, (2) the meaning of the agreement’s cancellation provision, and (3) the source of any repayment to the plaintiff. Under these circumstances, the plaintiff’s motion for summary judgment should have been denied (see, Rudnitsky v Robbins, 191 AD2d 488, 489). O’Brien, J. P., Thompson, Sullivan and Pizzuto, JJ., concur.