Opinion
October 23, 1995
Appeal from the Supreme Court, Dutchess County (Bernhard, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision adhering to that portion of the original determination which granted the plaintiff's cross motion for summary judgment and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
The parties' materially conflicting allegations concerning the terms of their contract, and the issues of credibility generated by those allegations, create questions of fact which cannot be resolved as a matter of law (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 ; Zilm v. Koch, 211 A.D.2d 675; Ferrer v. Stofsky, 204 A.D.2d 386; Rudnitsky v. Robbins, 191 A.D.2d 488, 489). Under these circumstances, the plaintiff's cross motion for summary judgment should have been denied (see, Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546; Greenberg v. Green, 197 A.D.2d 502; Bellavia v Greenough, 193 A.D.2d 712). Balletta, J.P., Thompson, Ritter and Florio, JJ., concur.