Mikoll, J. P., dissents and votes to reverse in a memorandum. Mikoll, J. P. (dissenting). In interpreting a contract, it is for the court to ascertain and give effect to the intent of the parties expressed in the written contract and where that intent can be gathered from the writing, interpretation is a question of law (Central Trust Co. v Sheahen, 66 AD2d 1015; see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291). But, when a term is ambiguous and the determination of the intent of the parties depends on the credibility of extrinsic evidence or a choice among reasonable inferences to be drawn from extrinsic evidence, such determination is for the trier of the facts (Hartford Acc. & Indent. Co. v Wesolowski, 33 NY2d 169, 172).
Article 23.2 of the general contract provides IBM broad authority to terminate contracts into which it enters. Article 23.3 of said contract provides, in part, that "[i]n the event of the termination of this Contract or a part thereof by IBM, the Contractor shall then, as directed by IBM, terminate some or all of its subcontractors”. Clearly these provisions gave IBM *764the right to terminate the work for which the parties had contracted and authorized defendant to terminate the subcontract with plaintiff in the event such action was taken by IBM. However, it appears that the termination clause of the contract is ambiguous and is dependant on extrinsic evidence. A question of fact arises as to whether the work was terminated or whether IBM merely substituted one type of seamless floor covering (Ameron) for another (Dex-O-Tex).
In Kenyon v Knights Templar & Masonic Mut. Aid Assn. (122 NY 247, 254), the Court of Appeals stated: "It may preliminarily be observed that, as a general rule, the construction of a written instrument is a question of law for the court to determine, but when the language employed is not free from ambiguity, or when it is equivocal and its interpretation depends upon the sense in which the words were used in view of the subject to which they relate, the relation of the parties and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact”. The affidavit of Joseph Cordi, plaintiffs president, submitted in opposition to defendant’s motion for summary judgment, describes the change not as a termination of the work but as a substitution of one seamless flooring for another, a situation, as Cordi described, "no different than if a painter is told to paint a house yellow instead of white, his work still exists”. Based on the proof submitted, plaintiff did not consider the phrase "abandon, postpone or terminate the work” in article 23.2 of the general contract to mean that its work could be terminated if there was merely a change in the material to be used in the performance of the work yet to be done. The word "terminate” is susceptible to different meanings. Moreover, the party which draws the contract and offers it should have any ambiguity resolved against it (Guardian Life Ins. Co. v Schaefer, 70 NY2d 888, 890). Defendant offered the subcontract here which plaintiff accepted.
Significantly, the work that was to be done at the IBM facility by plaintiff was done by another subcontractor at the facility with the changed or substituted flooring material. Moreover, considering the facts and circumstances of this case, it cannot be said that defendant made a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).
*765I find merit in plaintiff’s contention that there is a question of fact as to whether defendant breached an implied covenant of good faith and fair dealing (see, Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87) in (1) canceling the contract shortly after a change order increasing the contract price had been issued and shortly before the rescheduled date for commencement of its work, and (2) prior to the cancellation, continually meeting with the contractor at the site preparing for the work. The issue of whether such a breach occurred is generally a question of fact (see, Pernet v Peabody Eng’g Corp., 20 AD2d 781, 782).
Finally, plaintiff properly contends that it has asserted a cause of action for damages (see, Kenford Co. v County of Erie, 73 NY2d 312, 319). Whether there was a waiver of its claim for damages under the provisions of the contract is a question of fact.
The order and judgment of Supreme Court should be reversed and defendant’s motion for summary judgment denied.