Summary
affirming trial court's denial of employer's motion for summary judgment where agreement stated that employee's weekly salary "represents a commission guarantee for the next 15 to 18 months . . . and will act as a 'safety net,'" generating ambiguity as to whether contract was for a definite term or simply "at will"
Summary of this case from Litchhult v. USTRIVE2, Inc.Opinion
September 27, 1996.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following.
Before: Present Green, J.P., Pine, Fallon, Doerr and Boehm, JJ.
"The proper inquiry in determining whether a contract is ambiguous is 'whether the agreement on its face is reasonably susceptible of more than one interpretation' ( Chimart Assocs. v Paul, 66 NY2d 570, 573)" ( Arrow Communication Labs, v Pico Prods., 206 AD2d 922, 922-923). In seeking summary judgment, both parties bore the burden of establishing that their construction of the employment agreement "is the only construction which can fairly be placed thereon" ( Utica Carting, Stor. Contr. Co. v World Fire Mar. Ins. Co., 277 App Div 483, 488, quoted in Dowdle v Richards, 2 AD2d 486, 489). Neither party met that burden. The letter of December 22, 1994, stating that plaintiffs weekly salary "represents a commission guarantee for the next 15 to 18 months * * * and will act as a `safety net'", renders the employment agreement ambiguous on the issue whether plaintiff's employment was at will or for a definite term ( see, Myers v Coradian Corp., 92 AD2d 643; cf., Matter of Tyson v Hess, 109 AD2d 1068, 1069, affd 66 NY2d 943). Supreme Court, therefore, properly denied defendant's motion for summary judgment ( see, Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 NY2d 285, 291; Arrow Communication Labs, v Pico Prods., supra, at 923).
The court erred, however, in granting plaintiffs cross motion seeking a declaratory judgment. Because the language of the agreement is ambiguous, its construction presents a question of fact that should not be resolved on a motion for summary judgment ( see, Leon v Lukash, 121 AD2d 693, 694). Further, "[a] cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract" ( Apple Records v Capitol Records, 137 AD2d 50, 54). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.)