Opinion
12352 Index No. 652320/17 Case No. 2019-5079
11-12-2020
Yaakov ZAMIR, Plaintiff–Appellant, v. Sharon BEN–HAROSK et al., Defendants–Respondents.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellant. Mangan Ginsberg LLP, New York (Michael P. Mangan of counsel), for respondents.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellant.
Mangan Ginsberg LLP, New York (Michael P. Mangan of counsel), for respondents.
Gische, J.P., Gesmer, Kern, Kennedy, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered May 28, 2019, which granted defendants' motion for attorney's fees in the amount of $35,777.39, unanimously affirmed, without costs.
The motion court applied the correct standard for determining the "prevailing party" under a contractual attorneys' fees clause, namely, success on the central claims in the action ( Blue Sage Capital, L.P. v. Alfa Laval U.S. Holding, Inc., 168 A.D.3d 645, 646, 92 N.Y.S.3d 268 [1st Dept. 2019], lv denied 33 N.Y.3d 904, 2019 WL 2041623 [2019] ).
Plaintiff failed to show any injury from defendants' representations to the court that plaintiff would not be prejudiced by bringing new claims in a new action. The court had already ruled that the defects in the existing case would not be remedied by amendment, and sua sponte modified its order to reflect that the new claims were to be brought in a new action. Plaintiff argument that half or more of the $35,000 in fees sought did not pertain to the motion to dismiss itself and therefore are not recoverable, is unavailing. The parties' agreement entitles the prevailing party to all fees "in connection" with the action, and plaintiff has failed to point to any fees not incurred in connection with the action.