
    Schlegel Systems, Inc., Respondent-Appellant, v Silver Hill Associates, LLC, Appellant-Respondent.
    [778 NYS2d 348]
   Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, Wayne County (Stephen R Sirkin, A.J.), entered August 21, 2003. The order and judgment denied defendant’s amended motion for summary judgment and granted plaintiff summary judgment on the complaint.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by vacating those parts granting plaintiff summary judgment and as modified the order and judgment is affirmed without costs.

Memorandum: Although Supreme Court properly denied defendant’s amended motion, it erred in granting plaintiff summary judgment on the complaint. Plaintiff commenced this action seeking a declaration with respect to the proper amount of the termination payment due under section 29.04 of the parties’ sublease agreement. We conclude that “[t]he lack of clarity of [section 29.04] makes it susceptible to the construction proffered by both defendant and plaintiff. Thus, the intent of the parties must be determined by evidence outside the [sublease agreement], and the construction of [section 29.04] presents a question of fact that may not be resolved on a motion for summary judgment” (Arrow Communication Labs. v Pico Prods., 206 AD2d 922, 923 [1994]). We therefore modify the order and judgment accordingly. Present—Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.  