WILLCOX v. KARWOWSKI (2004)

Although Supreme Court properly denied plaintiff's motion seeking summary judgment, it erred in granting defendant's cross motion seeking summary judgment dismissing the complaint.   Plaintiff commenced this action seeking reformation of paragraph 3.1.5 of the parties' separation agreement (agreement) because it refers to a partnership as a corporation.   The partnership holds title to a parcel of property and, according to plaintiff, the agreement effectively transferred defendant's interest in that property to her, despite the fact that the partnership was described as a corporation.   Defendant contends that he did not intend to transfer his interest in the partnership to plaintiff.   We conclude that neither party is entitled to summary judgment here because there is an issue of fact whether the parties intended to include the partnership in paragraph 3.1.5 of the separation agreement (see Baby Togs v. Harold Trimming Co., 67 A.D.2d 868, 413 N.Y.S.2d 393) and thus whether the writing embodies the agreement that the parties in fact made (see Harris v. Uhlendorf, 24 N.Y.2d 463, 468, 301 N.Y.S.2d 53, 248 N.E.2d 892;  Lent v. Cea, 209 A.D.2d 820, 619 N.Y.S.2d 166, lv. denied 86 N.Y.2d 703, 631 N.Y.S.2d 607, 655 N.E.2d 704).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and reinstating the complaint and as modified the order is affirmed without costs.

MEMORANDUM: