Cass & Sons, Inc. v. Stag's Fuel Oil Co. , 601 N.Y.S.2d 803 ( 1993 )

—In an action, inter alia, to recover damages for accountant malpractice, the nonparty law firm formerly retained by the third-party defendants appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated December 13, 1990, as denied its application to recover additional counsel fees from the third-party defendants and directed it to deliver to the third-party defendants’ present attorneys all counsel fees it had received in excess of $5,000.

Ordered that the order is modified, on the law, by deleting the provision thereof directing the law firm of Easton & Echtman, P. C., to refund counsel fees paid in excess of $5,000; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

We agree with the Supreme Court that the appellant law firm did not demonstrate that it was entitled to additional counsel fees above those already paid (see generally, Spano v Scott, 166 AD2d 917; Theroux v Theroux, 145 AD2d 625). However, because the third-party defendants never affirmatively sought a refund by cross motion or otherwise, the court lacked the authority to grant such relief (see, Aadal v Sunchris Realty, 89 AD2d 898). Thompson, J. P., Sullivan, Lawrence and Eiber, JJ., concur.