Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court, inter alia, granted those branches of the defendant's motion which were for summary judgment dismissing so much of the complaint as sought to recover damages other than the damages specified in the "Termination for Convenience" clause of the contract ( see, Temple Marble Tile v. Long Is. R. R., 256 A.D.2d 526 [decided herewith]). Upon granting the plaintiff's motion for reargument of that motion, the Supreme Court, among other things, "recalled and vacated" so much of the prior order as, in effect, dismissed the plaintiff's cause of action to recover damages for loss of anticipated profits.
Paragraph 27.1 of the contract provides that upon a termination for convenience the plaintiff waives its claim of anticipated profits. However, Paragraph 27.5 of the contract provides that the defendant will pay the plaintiff for loss of anticipated profits. Thus, the contract is ambiguous as to this issue and the Supreme Court must rely on extrinsic evidence to discern the intent of the parties ( see, Katz v. Katz, 118 A.D.2d 626). Here, the defendant never submitted any extrinsic evidence supporting its interpretation of the contract. Consequently, the Supreme Court correctly concluded that the defendant failed to sustain its burden as the moving party, and its summary judgment motion as to this issue was properly denied.
Mangano, P. J., Miller, Thompson and Pizzuto, JJ., concur. [ See, 172 Misc.2d 422.]