Yesawich, Jr., J. (dissenting). We respectfully dissent.
The majority holds evidence of uncommunicated* subjective intent inadmissible to help resolve ambiguous contract lan*306guage. Prior case law, however, merely indicates that where there is no ambiguity in the document, uncommunicated subjective intent alone cannot create it (Wells v Shearson Lehman/American Express, 72 NY2d 11, 24). Here, as the majority notes, the contract is ambiguous on its face. Accordingly, Wells v Shearson Lehman/American Express (supra) is inapplicable.
Summary judgment should only be awarded when a contract is free from ambiguity and not subject to differing interpretations (see, Yogurts Intl. v Grand Union Co., 92 AD2d 936). Where an ambiguity cannot be resolved solely by reference to the document itself, determination of the contracting parties’ intent is for resolution by the trier of fact (Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172). To support their interpretation of the agreement, defendants Chien Kuo and Helen Kuo (hereinafter defendants) submitted an uncontroverted affidavit attesting that at the time of contracting they understood the contract to require title insurable in the amount of the purchase price only. Significantly, plaintiff neither challenges Chien Kuo’s explanation of what occurred between the parties before they executed the contract, nor indicates that it did not share Kuo’s understanding that title only need be one that "a New York State Title Company which is a member of the New York Board of Title Underwriters, will insure”. And as observed by the majority, defendants produced such a company at the closing.
As we believe that neither party sustained the burden of establishing that their proffered interpretation is the only construction that can fairly be placed on the document (see, 22 NY Jur 2d, Contracts, § 189, at 25; see also, Posner v United States Fid. & Guar. Co., 33 Misc 2d 653, 659, affd sub nom. Posner v New York Mut. Underwriters, 16 AD2d 1013), and because the determination of the intent of the parties rests on the credibility of extrinsic evidence (see, Hartford Acc. & Indem. Co. v Wesolowski, supra), we believe summary judgment is inappropriate at this time.
Mahoney, P. J., and Mikoll, J., concur with Casey, J.; Yesawich, Jr., and Harvey, JJ., dissent and vote to modify in an opinion by Yesawich, Jr., J. Order affirmed, with costs.
Actually, the record does not disclose whether defendants’ intent was shared with plaintiff. Moreover, the question of whether uncommunicated subjective intent is admissible to resolve ambiguous language is an issue neither raised nor briefed by the parties.