Opinion
May 10, 2000.
Appeal from Order and Judgment of Supreme Court, Monroe County, Stander, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., GREEN, HURLBUTT, KEHOE AND BALIO, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Supreme Court erred in granting plaintiffs' motion for summary judgment. Defendants' submissions in opposition to the motion raise triable issues of fact whether defendants are entitled to any part of the retainer fee paid by plaintiff Brown and East Ridge Partners to defendant Minicucci Grenga. We therefore modify the order and judgment in appeal No. 1 by denying plaintiffs' motion. In light of our determination, the appeal by defendants from the order in appeal No. 2 denying their motion seeking leave to renew plaintiffs' motion for summary judgment is dismissed as moot ( see, 55 Liberty St. Assocs. v. Garrick-Aug Assocs. Store Leasing, 255 A.D.2d 188).