Balport Construction Co., Inc., Appellant, v. New York Telephone Company, Respondent

(May 28, 1985) Balport Construction Co., Inc., Appellant, v New York Telephone Company, Respondent. [MAJORITY] In an action to recover the balance due under a written contract, plaintiff appeals from an order of the Supreme Court, Westchester County (Isseks, J.), dated February 6, 1984, which denied its motion for summary judgment. Order affirmed, with costs. Plaintiff claims that the terms of the written contract at issue entitle it to receive payment for certain work it performed under the contract. While defendant does not deny that the work was satisfactorily completed, it does contend that the payment for the work performed was included in payment for other work performed. The contract, however, is ambiguous as to whether plaintiff is entitled to separate payment for the work it performed. Accordingly, since there are issues of fact concerning interpretation of the contract, summary judgment may not be granted (see, Andre v Pomeroy, 35 NY2d 361). Weinstein, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.