Ritter, J. (dissenting). On their motion for summary judgment, the plaintiffs claimed that the parties never reached a meeting of the minds with respect to their duty to defend and indemnify the sellers against claims made by the broker. Accordingly, they asserted that there was never a binding contract and they were entitled to a return of the down payment.
In opposition to the motion, the sellers claimed that the plaintiffs were aware of the broker’s existing claim for a *291commission and the pending lawsuit during contract negotiations. They also claimed that the parties arrived at an agreement which expressly required the plaintiffs to hold them harmless and defend against any claims made by the broker including the existing lawsuit.
The Supreme Court granted the plaintiffs’ motion for summary judgment, although it concluded that there was an ambiguity concerning the parties’ intention on this subject. The court held, as a matter of law, that the parties had not reached an agreement with respect to this material element of the contract because although the interpretations each offered in support of their positions on the motion were different, both were reasonable. I disagree.
The issue in this case is what meaning should be given to paragraph 33 of the rider to the contract. This paragraph, which was drafted by the lawyer plaintiffs, provided: "33. The parties recognize that there is a possible claim by real estate broker, Barbara Stolen. As part of the purchase price the purchasers agree to hold seller harmless from any claim by said Barbara Stolen. Seller agrees to turn over to purchaser any and all information which they presently have as regards the lawsuit and agree to cooperate with purchaser in the defense of same”.
The only lawsuit pending at the time was the broker’s. In a transmittal letter to the sellers’ attorney, the plaintiff James Brands stated that this provision was proposed because the broker "may not be entitled to a commission [and] we would also want the ability of negotiating with her”.
These words have no meaning unless they refer to the broker’s pending suit. In light of the contradictory evidence in the record, it cannot be said, as a matter of law, that the parties failed to reach agreement with respect to the plaintiffs’ obligation to hold the defendants harmless against this lawsuit by the broker. In my view, there are factual issues which preclude an award of summary judgment in favor of either party. A critical issue of fact is whether the plaintiffs were aware of the broker’s claim and the pending lawsuit at the time the contract was signed. Although a fair reading of the contract provisions, as a whole, suggests that the plaintiffs must have been when they agreed to hold the sellers harmless under the circumstances existing herein, there is a dispute concerning what must have been reasonably intended by the parties. This question cannot be resolved without determining *292the credibility of the evidence offered by each party, a finding that cannot be made on the basis of the conflicting affidavits.
Accordingly, I vote to reverse the order appealed from, on the law, and to deny the plaintiffs’ motion for summary judgment.
O’Brien and Copertino, JJ., concur with Lawrence, J. P.; Ritter, J., dissents in a separate opinion.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed, and the order is vacated; and it is further,
Ordered that the respondents are awarded one bill of costs.