concurs in part and dissents in part with the following memorandum in which Brown, J., concurs: I concur in so much of the majority’s determination as converts the instant proceeding to a declaratory judgment action but otherwise dissent and vote to reverse the order appealed from and to deny the respondents’ cross motion to dismiss.
It is the petitioner’s contention that he is entitled, pursuant to paragraph 8.12-1 of the collective bargaining agreement between the Nassau County Patrolmen’s Benevolent Association and the respondent County of Nassau, to termination pay and pay for unused sick leave on the ground that he was separated from service "after ten (10) years” due to an "accidental disability”.
Contrary to the majority’s argument, it is my view that paragraph 8.12-1 is ambiguous on its face. That provision can be read and interpreted in either of two ways, i.e., so as to include the petitioner in, or to exclude him from, the class of persons who are eligible for the subject benefits. Since, the papers submitted in support of, and in opposition to, the respondents’ motion to dismiss, raise an issue of fact as to the parties’ intent with respect to paragraph 8.12-1, a trial is required to resolve this issue (see, Hartford Acc. & Indent. Co. v Wesolowski, 33 NY2d 169, 172).