
    R. B. 818 Madison Avenue Corp. et al., Respondents, v. Marion Weil Realty Corp., Appellant, et al., Defendant.
   Judgment, Supreme Court, New York County, entered on April 26, 1971, declaring the rights of the parties under a ground lease and awarding plaintiffs monetary damages, unanimously modified, on the law and on the facts, to the extent of eliminating all items of damages awarded, except as hereinafter indicated, and otherwise affirmed, without costs and without disbursements. Except for potential commercial rents lost, the damages awarded herein were not caused by defendant’s unreasonable refusal to consent to alterations. The costs incurred by plaintiffs in buying out residential tenants, in anticipation of converting the certificate of occupancy to commercial use, were of plaintiffs’ own choosing and would have been incurred even if consent to the alterations had been properly given. The Civil Court litigation, for which a counsel fee was awarded, was between the opposing parties hereto and did not involve a third party. Such fee is not recoverable herein. The amount awarded for lost rentals concededly covered both residential and commercial rents. Only the latter are recoverable, since residential rents would have been lost in any event upon conversion of the premises to commercial use. On this record the commercial rents lost cannot be segregated or computed. Accordingly, this matter is remanded for a trial on the limited issue of the potential commercial rents lost as a result of defendant’s refusal to consent to alterations. Concur — Nunez, J. P., Kupferman, McNally and Capozzoli, JJ.  