Wood v. 139 East 33rd Street Corp.

Order, Supreme Court, New York County (Louis B. York, J.), entered March 27, 2012, which denied plaintiffs 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 co-op breached the proprietary lease and the alteration agreement by stopping work that was proceeding in accordance with plaintiffs 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 2000]). 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. Plaintiffs 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 co-op prevail (see Real Property Law § 234). Concur — Tom, J.P, Acosta, Saxe, Freedman and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 30757(11).]