
    Nicholas J. Verbitsky et al., Respondents, v George Lamborn, Appellant.
    [654 NYS2d 305]
   —Order, Supreme Court, New York County (Carol Huff, J.), entered October 27, 1995, which, to the extent appealed from, denied defendant’s cross motion for summary judgment, without prejudice to renewal upon the completion of discovery, unanimously affirmed, with costs, and the matter is remanded to the IAS Court for purposes of determining the reasonable value of plaintiffs’ attorneys’ services in defending this appeal, and in establishing such value and awarding an additional fee therefor, all payable by defendant to plaintiffs and not to exceed $10,000 in the aggregate.

Defendant’s papers supporting the cross motion failed to establish its entitlement to summary judgment dismissing plaintiffs’ complaint for unpaid rent (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Moreover, summary judgment is precluded by factual issues, including the circumstances under which defendant vacated the premises. We have reviewed defendant’s other arguments and we find them to be without merit. Upon the court’s own initiative, and after affording defendant a reasonable opportunity to be heard upon the oral argument of this appeal, we find defendant’s appeal from the order, permitting renewal at a later stage of the action and criticizing counsel’s prior intransigence, to be frivolous in its entirety and impose costs accordingly (22 NYCRR part 130). Concur—Milonas, J. P., Rosenberger, Wallach and Nardelli, JJ.  