Opinion
June 21, 1993
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof awarding the defendant Delco Development Company of Hicksville summary judgment, and substituting therefor a provision denying Delco Development Company of Hicksville summary judgment; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff contends that the Supreme Court erred in awarding summary judgment to Delco Development Company of Hicksville (hereinafter Delco/Hicksville), upon the ground that a written agreement required the plaintiff to seek payment of its brokerage commission solely from the codefendant Delco Plainview Realty Associates. We agree. Although it is settled law that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (W.W.W. Assocs. v Giancontieri, 77 N.Y.2d 157, 162; Mercury Bay Boating Club v. San Diego Yacht Club, 76 N.Y.2d 256, 269-270), where a written agreement is ambiguous, extrinsic and parol evidence may be considered to determine its purpose and intent (see, W.W.W. Assocs. v. Giancontieri, supra; Van Wagner Adv. Corp. v. S M Enters., 67 N.Y.2d 186, 191; Paroff v. Muss, 171 A.D.2d 782). Whether or not a writing is ambiguous is a question of law to be resolved by the courts (see, Van Wagner Adv. Corp. v. S M Enters., supra, at 191).
Contrary to Delco/Hicksville's contention, the subject agreement does not clearly and unambiguously require the plaintiff to "look solely" to the codefendant Delco Plainview Realty Associates for payment of its commission, or indicate which of the two partnership entities was to pay the plaintiff for its efforts in procuring a tenant for Delco/Hicksville's property. Since the agreement is ambiguous, the affidavit of the plaintiff's vice president was sufficient to raise a triable issue of fact as to whether the codefendant was merely a guarantor or was the sole obligor. Thompson, J.P., Bracken, Balletta and Eiber, JJ., concur.