GARY GILPIN AND ANN GILPIN PLAINTIFFS RESPONDENTS APPELLANTS v. OSWEGO BUILDERS INC HOWARD OLINSKY AND OSLAW INC DEFENDANTS APPELLANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department, New York.

GARY W. GILPIN AND ANN C. GILPIN, PLAINTIFFS–RESPONDENTS -APPELLANTS, v. OSWEGO BUILDERS, INC., HOWARD D. OLINSKY AND OSLAW, INC., DEFENDANTS–APPELLANTS -RESPONDENTS.

CA 11–00042

Decided: September 30, 2011

PRESENT:  CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ. HISCOCK & BARCLAY, LLP, SYRACUSE (JON P. DEVENDORF OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANN M. ALEXANDER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, J.), entered April 7, 2010.   The order, among other things, denied in part the motion of defendants for partial summary judgment and denied the cross motion of plaintiffs for partial summary judgment.

Defendants moved for partial summary judgment seeking to dismiss all claims against defendant Howard D. Olinsky, the president of Oswego Builders, as well as the claim for breach of warranty with respect to mold.   Defendants contended that the “assertion of claims against Defendant Olinsky personally is little more than an improper effort to restructure the transaction to insert [him] as an additional party to the Contract.”   Plaintiffs cross-moved for partial summary judgment with respect to their second cause of action, for fraudulent misrepresentation, and for dismissal of defendants' counterclaim.   With respect to defendants' motion, Supreme Court denied that part with respect to Olinsky and granted that part for partial summary judgment dismissing the breach of warranty claim with respect to mold.   With respect to plaintiffs' cross motion, the court denied the cross motion in its entirety and instead granted summary judgment in defendants' favor dismissing the second cause of action, for fraudulent misrepresentation, and in addition granted judgment to defendants on their counterclaim.

We agree with plaintiffs on their cross appeal that the court erred in granting that part of defendants' motion for partial summary judgment dismissing their breach of warranty claim with respect to mold.   The “ ‘interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument’ “ (Chimart Assoc. v. Paul, 66 N.Y.2d 570, 572–573;  see generally Abramo v. HealthNow N.Y., Inc., 23 AD3d 986, 987, lv denied 6 NY3d 714).   In determining whether a contract is ambiguous, the court first must determine whether the contract “on its face is reasonably susceptible of more than one interpretation” (Chimart Assoc., 66 N.Y.2d at 573;  see St. Mary v Paul Smith's Coll. of Arts & Sciences, 247 A.D.2d 859).   It is well settled that, “[i]f there is ambiguity in the terminology used ․ and determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury ․ On the other hand, if the equivocality must be resolved wholly without reference to extrinsic evidence the issue is to be determined as a question of law for the court” (Hartford Acc. & Indem.   Co. v. Wesolowski, 33 N.Y.2d 169, 172).

Finally, the court also erred in granting judgment to defendants with respect to their counterclaim pursuant to CPLR 3212(b) when in fact plaintiffs had cross-moved to dismiss the counterclaim.   It is well settled that the doctrine of unclean hands may bar recovery where a party seeking such recovery “is guilty of immoral, unconscionable conduct” (National Distillers & Chem. Corp. v Seyopp Corp., 17 N.Y.2d 12, 15).   A party “seeking equity must do equity, i.e., he [or she] must come into court with clean hands” (Pecorella v. Greater Buffalo Press, 107 A.D.2d 1064, 1065).   Here, the restrictive covenants provide, inter alia, that “[t]he premises shall be used exclusively for single family dwelling purposes and shall not be used or maintained as rental property.”   Olinsky testified at his deposition, however, that he rented 4 Jordan Way, a house also subject to the restrictive covenants alleged by defendants in their counterclaim to have been violated by plaintiffs.   Olinsky therefore was also in violation of the restrictive covenants and was without “clean hands” (Pecorella, 107 A.D.2d at 1065;  see Kaufman v. Kehler, 25 AD3d 765).   Thus, we additionally modify the order accordingly.

We have considered defendants' contention on their appeal, i.e., that the breach of warranty claim against Olinsky should be dismissed, and conclude that it is without merit.

Patricia L. Morgan

Clerk of the Court