Key Bank of Western New York v. Kessler Graphics Corp. , 177 A.D.2d 1049 ( 1991 )

Order and judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: Defendants the Kessler Graphics Corporation and Morris Diamond appeal from an order and a judgment which awarded plaintiff counsel fees following plaintiff’s successful motion for partial summary judgment in its action to recover for damages incurred as a result of Kessler Graphics’ default on certain promissory notes (see, Key Bank v Kessler Graphics Corp. [appeal No. 1], 177 AD2d 1048 [decided herewith]).

The court, in rendering its decision, alluded to a promissory note dated November 16, 1984, between plaintiff and defendant Kessler Graphics. Since there is no reference to such note anywhere in the record on the underlying appeal involving plaintiff’s motion for partial summary judgment, plaintiff is not entitled to recover any counsel fees incurred to enforce such note. Accordingly, we reverse so much of the order and judgment as awarded counsel fees against defendant Kessler Graphics on the November 16 note and remit the matter for recalculation of the counsel fees plaintiff is entitled to recover from defendant Kessler Graphics. To the extent that the court’s order and judgment awarded counsel fees against defendant Morris Diamond, such award must be reversed and the award of counsel fees, if any, against him must await resolution of the factual issues raised in the underlying action. (Appeal from Order and Judgment of Supreme Court, Erie County, Flaherty, J.—Counsel Fees.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.