Opinion
July 13, 1978
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Hancock, Jr., and Schnepp, JJ. [ 89 Misc.2d 116.]
Order and judgment reversed, without costs, and motion denied. Memorandum: We reverse the order and judgment of Special Term awarding plaintiffs an extra allowance of $3,000 for attorney's fees under CPLR 8303 (subd [a], par 2). The general rule with respect to attorneys' fees is that such fees are normally a nonrecoverable item (Piaget Watch Corp. v Audemars Piguet Co., 35 A.D.2d 920) and that in the absence of contractual or statutory liability, attorneys' fees and expenses incurred in litigating a claim, aside from the usual court costs, are not recoverable as an item of damages (City of Buffalo v Clement Co., 28 N.Y.2d 241, 262-263; Klein v Sharp, 41 A.D.2d 926). Absent the existence of express authority for their recovery, as here, attorneys' fees should not be awarded under the guise of an additional allowance pursuant to CPLR 8303 (subd [a], par 2).
CPLR 8303 (subd [a], par 2) provides for a discretionary allowance "to any party to a difficult or extraordinary case, where a defense has been interposed" limited to "a sum not exceeding five per cent of the sum recovered or claimed, or of the value of the subject matter involved, and not exceeding the sum of three thousand dollars". The trial court awarded respondents herein $3,000 as an allowance finding that this was a most difficult legal proceeding since it involved a new question of interpretation of the Constitution of the State of New York and that such a novel issue required an extraordinary and unusual amount of time and preparation. Respondents prevailed in their declaratory judgment action (see Tucker v Toia, 43 N.Y.2d 1, affd 89 Misc.2d 116). Where no damages are claimed or recovered, as is the case in this declaratory judgment action, it is appropriate for the allowance to be based upon "the value of the subject matter involved" (CPLR 8303, subd [a], par 2; Kremer v New York Air Terms., 235 App. Div. 796, affd 260 N.Y. 552; Little Falls Fibre Co. v Ford Son, 223 App. Div. 559, affd 249 N.Y. 495). The affidavit permitted in support of the application (8 Weinstein-Korn-Miller, N Y Civ Prac, par 8303.11) properly demonstrates that "'the value of the subject matter involved'" considered on an ongoing basis totaled many millions of dollars. Since the Special Term that granted this allowance was the court before which the trial was had (Phillips v Blasenheim, 32 A.D.2d 660) and the granting of such an allowance rests in the sound discretion of that court (Abbott v Paige Airways, 23 N.Y.2d 502, 515; Northern Structures v Union Bank, 57 A.D.2d 360, 369, mot for lv to app granted 43 N.Y.2d 646), the award was properly made and there is no basis to conclude that Special Term abused its discretion. Accordingly, in my view Special Term was justified in awarding an allowance of $3,000.