Opinion
August 24, 1995
Appeal from the Supreme Court, New York County (David Saxe, J.).
Defendants correctly contend that since the language of the parties' agreement did not clearly provide for the recovery of attorneys' fees, the court erred in awarding such fees to plaintiffs ( Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487; cf., Breed, Abbott Morgan v. Hulko, 74 N.Y.2d 686, affg 139 A.D.2d 71). We further note that since issue had been joined and the parties clearly indicated that they were deliberately charting a summary judgment course, the IAS Court did not err in treating plaintiffs' motion to dismiss pursuant to CPLR 3211(b) as one for summary judgment pursuant to CPLR 3212 ( Mihlovan v. Grozavu, 72 N.Y.2d 506).
We have considered defendants' remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Rubin, Ross, Asch and Tom, JJ.