Opinion
May 31, 1996
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Green, J.P., Pine, Lawton, Balio and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Plaintiffs contend that Supreme Court erred in awarding attorney's fees to defendants for the defense of the fraud causes of action. We agree. The second mortgage entered into between plaintiffs, as mortgagors, and Wendell W. Mix and defendant Robert D. Langtry, as second mortgagees, provided for the second mortgagees to recover attorney's fees necessary "to collect the debt covered by this mortgage or to protect or foreclose this mortgage". In their previously dismissed causes of action ( see, Sirota v. Langtry, 204 A.D.2d 1009, lv dismissed 84 N.Y.2d 977), plaintiffs sought monetary damages for defendants' alleged fraud and misrepresentations prior to plaintiffs' purchase of a nine-unit commercial rental property. Plaintiffs did not seek to void, reform or repudiate the purchase contract or the bond and second mortgage arising from that purchase contract; they did not attack the continued validity of the second mortgage. Under those circumstances, the legal fees for the defense of the fraud causes of action were not expended by defendants to "protect or foreclose this mortgage" and, therefore, are not recoverable from plaintiffs ( see, GIT Indus. v. Rose, 94 A.D.2d 714, affd 62 N.Y.2d 659; cf., Chelsea/22 Assocs. v. Fleissner, 150 A.D.2d 212).
We therefore modify the order by vacating the last ordering paragraph and remit the matter to Supreme Court to recompute the attorney's fees and grant judgment accordingly. We have reviewed plaintiffs' remaining contentions and conclude that they are without merit.