New York Supreme and/or Appellate Courts Appellate Division, First Department
March 28, 2013
139 EAST 33RD STREET CORP., ET AL.,
Wood v 139 E. 33rd St. Corp.
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 on March 28, 2013
Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered March 27, 2012, which denied plaintiff's motion for summary judgment, and granted so much of defendants' cross motion as sought summary judgment dismissing the complaint and partial summary judgment on the second, third and fourth counterclaims (for attorneys' fees, breach of contract and promissory estoppel), unanimously modified, on the law, to deny defendants' motion for summary judgment dismissing the first and seventh causes of action (for breach of contract and attorneys' fees) and for partial summary judgment on the counterclaims, and otherwise affirmed, without costs.
The issue of whether defendant coop breached the proprietary lease and the alteration agreement by stopping work that was proceeding in accordance with plaintiff's approved renovation plans is correctly resolved without regard to the business judgment rule (Whalen v 50 Sutton Place S. Owners, 276 AD2d 356 [1st Dept ). Summary judgment in either side's favor on the breach of contract claims is precluded by an issue of fact as to whether plaintiff violated the alteration agreement, raised by the conflicting testimony regarding her allegedly drilling into the ceiling. Plaintiff's claim for attorneys' fees should not be dismissed, because she may prevail in this action, and the proprietary lease provides for legal fees should the coop prevail (see Real Property Law § 234).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 28, 2013
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