Bldg ABI Enters., LLC v. 711 Second Ave. Corp.

2023 NY Slip Op 05031

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2023
• Docket: Index No. 110703/11 Appeal No. 728 Case No. 2022-01599
• Status: Published

Opinion

Bldg ABI Enters., LLC v 711 Second Ave. Corp. (2023 NY Slip Op 05031)

Bldg ABI Enters., LLC v 711 Second Ave. Corp.

2023 NY Slip Op 05031

Decided on October 05, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 05, 2023
Before: Manzanet-Daniels, J.P., Singh, Gesmer, Rodriguez, Rosado, JJ.

Index No. 110703/11 Appeal No. 728 Case No. 2022-01599

[*1]Bldg ABI Enterprises, LLC, Plaintiff-Respondent,

v

711 Second Avenue Corp., et al., Defendants-Appellants.

Michael R. Curran, Flushing, for appellants.

Livoti, Bernstein & Moraco, P.C., Bedford (Robert F. Moraco of counsel), for respondent.

Amended order, Supreme Court, New York County (Elizabeth Shamahs, Special Ref.), entered on or about March 2, 2022, which after a hearing, awarded plaintiff $114,673.04 as reasonable counsel fees, to be paid jointly and severally by defendants, unanimously modified, on the law, to vacate the award as against defendant Ian Cheng, and otherwise affirmed, without costs.

The order appealed from did not decide a motion made upon notice and therefore is not appealable as of right (see CPLR 5701[a][2]). Nevertheless, we exercise our discretion to deem plaintiff's notice of appeal a motion for leave to appeal, and grant that motion (see CPLR 5701[c]; Serradilla v Lords Corp., 12 AD3d 279, 280 [1st Dept 2004]).

Supreme Court's posttrial order referred the issue of reasonable counsel fees on plaintiff's first and second causes of action to a judicial hearing officer for hearing and determination (see CPLR 4311). Neither party disputes that plaintiff's claims for counsel fees against Cheng are predicated on plaintiff's third cause of action. Thus, the Special Referee lacked jurisdiction to award plaintiff counsel fees against Cheng.

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 5, 2023