Morrell & Co. v. Richalan Realty Corp. ( 1984 )

—Order, Supreme Court, New York County (Saxe, J.), entered May 4,1984, which denied the motion of Morrell & Company for summary judgment in one of two consolidated actions (action No. 1) seeking a direction that Richalan Realty Corp. convey a certain building to Morrell, granted Richalan summary judgment in action No. 1 dismissing Morrell’s complaint, granted Richalan partial summary judgment in action No. 2, and severed and directed an inquest as to fair rental value for Morrell’s use and occupancy of the building, and for Richalan’s reasonable attorney’s fees, unanimously modified, on the law, on the facts and in the exercise of discretion; to strike the direction for inquest as to the value of Richalan’s attorney’s fees, without prejudice to Richalan commencing a plenary action as to such issue, and the order is otherwise affirmed, without costs.

In these consolidated actions, fundamentally turning on whether or not Morrell & Company’s (Morrell) right of first refusal under a lease had been triggered by certain events, no application for recovery of attorney’s fees had been made by the successful party, Richalan Realty Corp. (Richalan), in its pleadings or in its ultimately successful motion for summary judgment. That claim appears to have been made for the first time in its proposed order following Special Term’s opinion which was addressed to entirely different issues. We think Morrell has a right to a more adequate opportunity to contest Richalan’s claim for attorney’s fees, a claim that presents issues not entirely free from doubt. (Cf. Hall & Co. v Orient Overseas Assoc., 84 AD2d 338, affd 56 NY2d 965.)

In deleting this direction in Special Term’s order, we of course do so without prejudice to Richalan’s right to seek recovery of such fees in a plenary action. Concur — Murphy, P. J., Sandler, Asch, Milonas and Alexander, JJ.