GRAMERCY PARK RESIDENCE CORP v. ELLMAN (2012)

Order and judgment (one paper), Supreme Court, New York County (Rosalyn H. Richter, J.), entered November 4, 2005, which, to the extent appealed from, granted defendant's cross motion for summary judgment on the first counterclaim and awarded defendant attorneys' fees in connection with that counterclaim, and denied plaintiff's summary judgment motion to dismiss that counterclaim, unanimously modified, on the law, to deny defendant's cross motion and vacate the fee award, remand for further proceedings, and otherwise affirmed, without costs.

 The appeal from the November 2005 judgment is not untimely due to the failure to serve notice of entry.   To the contrary, such failure means that the 30–day time limit to notice the appeal never began to run, and thus, the appeal is timely (see Matter of Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247, 804 N.E.2d 411 [2003] ).

 With regard to the merits, there are issues of fact as to who actually erected the subject sunshade.   While the proprietary lease clearly states that such costs are to be borne by the lessee if the structure was erected by the lessee or her predecessor in interest, the documentary evidence submitted by the parties fails to establish who erected the original structure.   As such, the award of attorneys' fees to defendant on this issue must be vacated and a hearing held to resolve the issue of who built the original structure.   Only at that time may further proceedings be held to set the amount of attorneys' fees to which the prevailing party is entitled.