Cantor, Epstein & Mazzola, LLP, New York City (Robert I. Cantor and Brett L. Carrick of counsel), for appellant. Rappaport Hertz Cherson & Rosenthal, P.C., Forest Hills (Jeffrey M. Steinitz of counsel), for respondent.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, order of Supreme Court, New York County, reinstated, and certified question answered in the negative. The Appellate Division erred in determining that defendant was the prevailing party. Accordingly, defendant is not entitled to attorneys' fees. Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT, RIVERA and ABDUS–SALAAM concur.