BLDG ABI ENTERPRISES LLC v. 711 SECOND AVENUE CORP (2023)

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 A.D.3d 279, 280, 785 N.Y.S.2d 433 [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.