Tuttle v. Juanis , 54 A.D.2d 589 ( 1976 )

In an action inter alia to recover accrued rent installments, defendants appeal from (1) an order of the Supreme Court, Westchester County, entered October 28, 1975, which (a) granted plaintiffs’ motion for summary judgment as to (i) the first cause of action and (ii) defendant Juanis’ counterclaim and (b) severed the second cause of action and (2) the judgment of the same court, entered thereon on October 31, 1975. Order modified by adding thereto, after the words "motion for summary judgment on the first cause of action is granted”, the following: "except as to the request therein for attorney’s fees and, as to such request, a hearing is ordered as to the issue of reasonableness”; judgment modified accordingly. As so modified, order and judgment affirmed, with one bill of $50 costs and disbursements to plaintiffs, and action remanded to Special Term for the entry of an appropriate amended judgment and for a hearing on the issue of reasonableness as to the demand for attorney’s fees. As to the first cause of action, it is our opinion that the plaintiffs were entitled to recover, as a matter of law. The affidavit of the plaintiffs’ attorney, based on documentary evidence in his possession, was sufficient (see Getlan v Hofstra Univ., 41 AD2d 830, app dsmd 33 NY2d 646). Special Term properly severed the second cause of action (see CPLR 3212, subd [e]). As to the defendant Juanis’ counterclaim, it is our opinion that his conclusory statements, devoid of evidentiary facts, were insufficient to oppose the moving papers based on documentary evidence (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285). The award of attorney’s fees to the plaintiffs, pursuant to a lease provision, has been deleted and the case remanded for a hearing on the issue of reasonableness (cf. Equitable Lbr. Corp. v IPA Land Development Corp., 38 NY2d 516, 522, 524; Franklin Nat. Bank v Wall St. Commercial Corp., 21 AD2d 878). Hopkins, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur.