Kaplan v. Shell Oil Co.

— In an action for damages and injunctive relief based inter alia upon defendant’s alleged breach of a franchise agreement, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated January 10, 1975, as, upon granting the branch of plaintiff’s motion which sought a substitution of attorneys, conditioned the turning over of documents by the outgoing attorneys upon the payment of an additional fee and disbursements. Order reversed insofar as appealed from, without costs, and motion remitted to Special Term for further proceedings not inconsistent herewith. The issue of respondents’ misfeasance, and hence their right to compensation, was decided largely on affidavits. Since the affidavits are conflicting, that issue and the amount of the fee, if any, to which théy are entitled should be resolved only after a hearing in which sworn testimony and other evidence are received, subject to cross-examination (Matter of Weitling, 266 NY 184; [599] Krupicka v New York Tel. Co., 31 AD2d 931). Rabin, Acting P. J., Martuscello, Latham, Margett and Munder, JJ., concur.