Stanton v. Pagones, Cross & Van Tuyl, P. C. , 733 N.Y.S.2d 875 ( 2001 )

—In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Dutchess County (Perone, J.), dated July 6, 2000, as denied their motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated February 21, 2001, as, upon granting their motion for leave to renew and reargue, adhered to the prior determination.

Ordered that the appeal from the order dated July 6, 2000, is dismissed, as that order was superseded by the order dated February 21, 2001, made upon reargument and renewal; and it is further,

Ordered that the order dated February 21, 2001, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The defendants retained the plaintiff as trial counsel in two actions to recover damages for defamation for an agreed-upon fee. The plaintiff contends that pursuant to a subsequent oral agreement, the parties agreed to an additional fee. There are issues of fact as to whether the parties modified their agreement and whether, in consideration for that modification, the plaintiff agreed not to move to withdraw as counsel. Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint (see, General Obligations Law § 5-1103; Eldon Realty v Fox Meadow Assocs., 136 AD2d 677; Foley v Pac Am Or Bearing, 105 AD2d 1120).

The appellants’ remaining contentions are without merit. Ritter, J. P., H. Miller, Feuerstein and Prudenti, JJ., concur.