Crossroads Automotive Restorations & Repairs, Inc., Respondent, v. Smijer Realty, Inc., et al., Appellants, and Paris Javaras, Additional Defendant on Counterclaim

Crossroads Automotive Restorations & Repairs, Inc., Respondent, v Smijer Realty, Inc., et al., Appellants, and Paris Javaras, Additional Defendant on Counterclaim. [MAJORITY] In an action seeking, inter alia, rescission, the defendants Smijer Realty, Inc., and Award Petroleum, Inc., appeal from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated June 29, 1983, which denied their motion to dismiss each of the causes of action asserted against them. Order modified, on the law, motion granted to the extent that (1) the complaint is dismissed as against defendant Award Petroleum, Inc., and (2) the fifth cause of action is dismissed as against defendant Smijer Realty, Inc., and the motion is otherwise denied. As so modified, order affirmed, without costs or disbursements. Plaintiff’s complaint reveals that no claim whatsoever is made against defendant Award Petroleum, Inc. Consequently, Special Term erred when it refused to dismiss the complaint against said defendant. By its fifth cause of action, plaintiff seeks an award of reasonable attorneys’ fees from the defendants. “Attorneys’ fees are not usually compensable in the absence of specific statutory authority, or contractual obligation or incident to recovery for certain torts involving malice” (Flaks, Zaslow & Co. v Bank Computer Network Corp., 66 AD2d 363, 365, app dsmd 47 NY2d 951). Inasmuch as none of those circumstances is present herein, the plaintiff’s fifth cause of action must be dismissed. Bracken, J. P., O’Connor, Brown and Niehoff, JJ., concur.