This case arises out of an employment agreement dated June 16, 2010 (the [*2]"Agreement"), between plaintiff, Kurt E. Berlinghof ("Berlinghof") and defendant Long Island Fiber Exchange, Inc. ("LI Fiber")^[FN1]. During Oral Argument held on October 24, 2011, both parties argued that the relevant sections of the Agreement are as follows:

(1) Retention of Services; Term. The company hereby retains the services of Employee, and Employee agrees to furnish such services, upon the terms and conditions hereinafter set forth. Subject to earlier termination on the terms and conditions hereinafter provided, and further subject to certain provisions hereof which survive the term of the employment of Employee by the Company, the term of this Agreement shall be comprised of a three (3) year period of employment commencing on June 16, 2010 (the "Commencement Date") and ending on June 16, 2013 and shall be extended thereafter for additional one-year periods unless or until the Company or Employee provides no less than 60 days prior notice to the other party of the termination of this Agreement at the end of the then current term of employment (the "Termination Notice"). The foregoing shall not be construed to limit the right of the Company to terminate Employee's employment pursuant to Section 9 of this Agreement.

The parties further agree that Paragraph 9(c) is the relevant paragraph in the Agreement since both parties agree that the termination was not "for Cause" nor based on a disability of Berlinghof. The relevant portion of Paragraph 9 (c) states:

If the company terminates this agreement or Employee's employment hereunder for any reason other than (i) "for Cause" as set forth in Section 9(a) hereof or (ii) a termination by the Company pursuant to Section 5, ... then, as liquidated damages, the Company shall pay to Employee the amount of two million dollars ($2,000,000), due and payable within (60) sixty days of termination date. Employee and the Company acknowledge that the foregoing provisions of this Section 9(c) are reasonable and are based upon the facts and circumstances of the parties at the time of entering into this Agreement, and with due regard to future expectations. The amount to be paid to Employee pursuant to this Section 9 (c) shall constitute the sole and exclusive remedy of Employee and Employee shall not be entitled to any other or further [*3]compensation, rights or benefits hereunder or otherwise, except federal COBRA benefits. The amount to be paid to Employee pursuant to this section 9(C) shall be contingent upon the execution by Employee of a release in the form attached hereto as Exhibit A.

Pursuant to the record, on or about March 29, 2011 LI Fiber sent a letter to Berlinghof which provides formal notification of its decision not to renew "your July 16, 2010 Employment Agreement with LIFE", as amended on September 10, 2010"^[FN2]. On June 15, 2011 an additional letter was sent to Berlinghof referencing the error in the March letter and confirming an offer of employment to Berlinghof with LI Fiber as an at will employee after the June 16, 2011. Berlinghof responded by letter dated June 17, 2011 at which time he demanded the $2,000,000 which he argues LI Fiber was obligated to pay under Section 9( c ) of the Agreement. Berlinghof reiterates the section of LI Fiber's letter which states the employment agreement "Shall expire and terminate effective June 16, 2011". Berlinghof also states in this letter that he agrees to execute the release as set forth in paragraph 9 (c) in order to facilitate payment. He further rejects the offer to continue with LI Fiber as an at will employee.

Berlinghof's claim for entitlement to payment was rejected by LI Fiber and subsequently, Berlinghof brought this action. The complaint sets forth two causes of action, one claiming breach of contract and the other seeking a declaratory judgment, that LI Fiber is liable to plaintiff in the amount of $2,000,000.00.

LI Fiber now moves to dismiss this action in its entirety pursuant to CPLR §3211 (a) (1). LI Fiber claims that the Agreement as well as the "Non-Renewal Notice" are sufficient documentary evidence to warrant dismissal of the action. In support of this argument, LI Fiber claims that the Agreement provided either party the option of not renewing the Agreement by giving notice 60 days before the expiration date. It is undisputed that a letter was sent on March 29, 2011 which purports to advise Berlinghof of LI Fiber's intention not to renew the Agreement. In further support, LI Fiber claims that this letter was sent to confirm its position of allowing the Agreement to expire by its own terms. LI Fiber argues that the clause providing for liquidated damages was never triggered since no "termination" occurred. Rather the Agreement was fully satisfied on June 16, 2011 by its own terms. LI Fiber argues that the language is unambiguous and warrants dismissal of the complaint. [*4]

In opposition, Berlinghof argues that the language of the agreement is equally clear to support his entitlement to liquidated damages. He contends that the word "termination" is used consistently throughout the Agreement and clearly provides that if Li Fiber terminates Berlinghof's employment and/or the Agreement without cause under Section 1, he would be entitled to the liquidated damages set forth in the Agreement. Berlinghof further argues that the plain meaning of the Agreement is clear on its face and dismissal should be denied.

It is well settled that, in considering a motion to dismiss pursuant to CPLR §3211(a), the Court is to construe the complaint liberally, to accept the alleged facts as true, to give the plaintiff the benefit of every possible favorable inference, and to determine only whether the alleged facts fit within any cognizable legal theory (see, Leon v Martinez, 84 NY2d 83; Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633). Under CPLR §3211 (a)(1), dismissal is warranted only if the documentary evidence submitted utterly refutes the plaintiff's factual allegations, conclusively establishing a defense to the asserted claims as a matter of law (see, Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326; Leon v Martinez, supra at 88). Extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide. (See, Innophos, Inc. v. Rhodia, S.A., 10 NY3d 25, 852 N.Y.S.2d 820 (2008).

After a fair reading of the Agreement and considering the Oral Argument presented by counsel, the Court finds that the agreement, when read as a whole, may reasonably lend itself to more then one interpretation. Therefore, the Court finds that the defendant, LI Fiber has failed to demonstrate its entitlement to dismissal of the Complaint and therefore the motion is denied.

In addition to opposing the motion to dismiss, Berlinghof cross-moved for Summary Judgment. In support of his motion, Berlinghof argues that the use of the word "termination" throughout the agreement was consistent and extends to the portions of the agreement relevant to this lawsuit including section 9(c). In support of Summary Judgment, Berlinghof contends that the intent of the parties can be determined within the four corners of the contract. However, Berlinghof invites the Court to search the record to clarify the intent of the parties in drafting this liquidated damages clause including reference to a prior litigation before this Court. Berlinghof also argues that the Agreement does not distinguish between non-renewal and termination and had the parties intended to have such a distinction, that language could have been written into the Agreement but was not.

LI Fiber argues that Berlinghof's interpretation of the agreement is "illogical and inconsistent" with the language in the Agreement. In addition, LI Fiber contends that the interpretation as set forth by Berlinghof would render the language in paragraphs 1 and 9 of [*5]the Agreement, meaningless. In further support, LI Fiber argues that it fully performed all of its obligations pursuant to the Agreement. It merely exercised its right not to extend and/or renew the agreement which did not trigger the plaintiff's right to liquidated damages.

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues (Kolivas v Kirchoff, 14 AD3d 493). The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp. 68 NY2d 320, 324). A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself and there is no reasonable basis of difference of opinion (See, Greenfield v. Philles Records, Inc., 98 NY2d 562, 750 N.Y.S.2d 565). To defeat the motion, the opponent must present evidentiary facts sufficient to raise a triable issue of fact (Freedman v Chemical Constr. Co., 43 NY2d 260, 264). Since summary judgment is the procedural equivalent of a trial, the motion should be denied if there is any doubt as to the existence of a triable issue or when a material issue of fact is arguable (Salino v IPT Trucking, 203 AD2d 352).

Courts have held that "A cardinal principle governing the construction of contracts is that the entire contract must be considered and, as between possible interpretations of an ambiguous term, that will be chosen which best accords with the sense of the remainder of the contract" (see, Metropolitan Life Insurance Company v. Noble Lowndes International Inc. 84 NY2d 430; see also, Prime Realty Holding Co. v Station Plaza Company, 122 A2d 141). Furthermore, a court will endeavor to give the contract construction, most equitable to both parties (see, Metropolitan Life Insurance Company v. Noble Lowndes International Inc. 84 NY2d 430).

Turning to the case at bar, the Court finds that the terms of the Agreement as to the Termination clause contained therein is ambiguous at best. Where an agreement contains an ambiguity, the court may look at extrinsic evidence to determine the intent of the parties (see, Tierney v. Drago 38 AD3d 755).

Although the plaintiff has offered additional information he believes supports his position as to the intent of the parties, the Court denies the motion for Summary Judgment without prejudice. Since this case is in its initial stages, and discovery has not yet taken place the Court directs the parties to enter into a discovery order. At the end of discovery, either party may move for Summary judgment without further leave of Court.

[*6]

This constitutes the DECISION and ORDER of the Court.

DATED:November 28, 2011

Emily Pines J. S.C.