Opinion
16559 Index No. 156867/21 Case No. 2022–00982
10-27-2022
In the Matter of 419 BR PARTNERS LLC, Petitioner–Respondent, v. Eli ZABAR et al., Respondents–Appellants.
Farber Schneider Ferrari LLP, New York (Daniel J. Schneider of counsel), for appellants. Quinn McCabe LLP, New York (David M. Peraino of counsel), for respondent.
Farber Schneider Ferrari LLP, New York (Daniel J. Schneider of counsel), for appellants.
Quinn McCabe LLP, New York (David M. Peraino of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.
Order, Supreme Court, New York County (Verna L. Saunders, J.), entered February 8, 2022, which, to the extent appealed from, denied respondents Eli Zabar, Trustee, Sondra Zabar, Trustee, and Devon Fredericks 2012 Family Trust's (collectively, respondents) application for attorney and professional engineering fees, unanimously affirmed, without costs.
A prevailing party may not recover attorneys’ fees from the losing party except where authorized by statute, agreement, or court rule (see U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 N.Y.3d 592, 597, 789 N.Y.S.2d 470, 822 N.E.2d 777 [2004] ). No such statute, agreement, or rule exists here.
As to the statutory basis for respondents’ petition, RPAPL 881 allows entities seeking to make improvements to their own property to petition the court for a license to access a neighboring property, and does empower a court to award reasonable attorneys’ and engineering fees to the owners or lessees of the neighboring property when the court grants the license (see Matter of Panasia Estate, Inc. v. 29 W. 19 Condominium, 204 A.D.3d 33, 37, 164 N.Y.S.3d 551 [1st Dept. 2022] lv dismissed 38 N.Y.3d 1125, 172 N.Y.S.3d 675, 192 N.E.3d 1154 [2022] ). However, the statute does not authorize an award of fees where, as here, the neighboring property owner successfully defends against the RPAPL proceeding and the court does not grant the license sought (see Matter of North 7–8 Invs. LLC v. Newgarden, 43 Misc.3d 623, 631, 982 N.Y.S.2d 704 [Sup. Ct., Kings County 2014] ). In the absence of any statutory authority permitting the court to grant such fees where no license has been issued, an award of legal and professional fees is not authorized.
We have considered respondents’ remaining contentions and find them unavailing.