COUNTY OF ORANGE v. CARRIER CORPORATION (2008)

In an action, inter alia, to recover damages for breach of contract and breach of warranty, the defendants Carrier Corporation and Carrier Commercial Service appeal, as limited by their brief, from so much of an order of the Supreme County, Orange County (Horowitz, J.), entered June 22, 2007, as denied their motion for summary judgment dismissing, as time-barred, any claim that accrued more than one year before the commencement of the action, and dismissing any claim for consequential damages.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment (see Amusement Bus. Underwriters v. American Intl. Group, 66 N.Y.2d 878, 880-881, 498 N.Y.S.2d 760, 489 N.E.2d 729;  DiLorenzo v. Estate Motors, Inc., 22 A.D.3d 630, 631, 802 N.Y.S.2d 516;  Yerushalmi & Assoc., LLP v. Westland Overseas Corp., 21 A.D.3d 1098, 803 N.Y.S.2d 620;  DePasquale v. Daniel Realty Assoc., 304 A.D.2d 613, 757 N.Y.S.2d 477).   Here, attached to the parties' agreement dated April 3, 2001, was a document entitled “terms and conditions” that, inter alia, confined the limitations period for any causes of action arising out of the agreement to one year and barred the recovery of consequential damages.   The defendants failed to establish, prima facie, that the language in the parties' subsequent agreements clearly and unambiguously referred to those “terms and conditions” (DiLorenzo v. Estate Motors, Inc., 22 A.D.3d at 631, 802 N.Y.S.2d 516;  see Amusement Bus. v. American Intl. Group, 66 N.Y.2d at 880-881, 498 N.Y.S.2d 760, 489 N.E.2d 729;  DePasquale v. Daniel Realty Assoc., 304 A.D.2d 613, 757 N.Y.S.2d 477).   Nor did the defendants establish, as a matter of law, that the parties' subsequent agreements incorporated those “terms and conditions” by reference (see Spiegler v. Gerken Bldg. Corp., 35 A.D.3d 715, 717, 826 N.Y.S.2d 674;  Chiacchia v. National Westminster Bank, 124 A.D.2d 626, 628, 507 N.Y.S.2d 888).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing, as time-barred, those claims that had accrued more than one year prior to the commencement of the action and dismissing any claims for consequential damages, based on provisions in the terms and conditions document attached to the April 3, 2001, agreement, as issues of fact remain which can only be resolved at trial.

The defendants' remaining contention is without merit.