Opinion
3384.
Decided May 25, 2004.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered September 9, 2002, which, to the extent appealed from as limited by the briefs, awarded attorneys' fees, costs and disbursements to plaintiff, unanimously reversed, on the law, without costs, and that part of the third decretal paragraph which referred the matter to a Special Referee to hear and determine the amount of attorneys' fees incurred by plaintiff in connection with this action vacated.
Klein Solomon, New York (Jay B. Solomon of counsel), for appellant.
Finkelstein Newman, LLP, New York (Barry Gottlieb of counsel), for respondent.
Before: Andrias, J.P., Lerner, Friedman, Marlow, JJ.
Absent any statutory or contractual authority, the motion court's award of counsel fees incurred by plaintiffs in connection with this action is unwarranted ( Hooper v. AGS Computers, 74 N.Y.2d 487, 491). Unlike the successful parties in Sterling National Bank v. Israel Discount Bank of New York ( 305 A.D.2d 184, 185), Aero Garage Corp. v. Hirschfeld, ( 185 A.D.2d 775, 776, lv denied 81 N.Y.2d 701) and City of Elmira v. Larry Walter, Inc. ( 150 A.D.2d 129, 133, affd 76 N.Y.2d 912), plaintiff's legal expenses in obtaining an order permanently enjoining defendant from taking any further steps to terminate its commercial lease pursuant to a notice of default and to cure, dated May 24, 1999, were not incurred in attempting by itself to fulfill defendant's obligations under the parties' lease and were not "directly occasioned and made necessary by" any breach of the lease by defendant. There is no showing that defendant's unsuccessful efforts to enforce the terms of the parties' lease constituted any breach of the implied covenant of good faith and fair dealing inherent in all contracts.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.