Opinion
October 11, 1990
Appeal from the Supreme Court, Bronx County (Gordon Burrows, J.).
Defendant, a general contractor, recovered a judgment against the New York State Dormitory Authority in another action for costs and damages incurred on a construction project, including $55,370 attributable to work plaintiff had performed as a subcontractor on the same project. When defendant did not pay plaintiff, it instituted the present action. This court, on a prior appeal, granted summary judgment to the plaintiff on the second, third and fourth causes of action for unjust enrichment, constructive trust and money had and received, and remanded the matter for an assessment of damages at which any reduction for the principal amount of plaintiff's claim due to costs or legal fees would be determined. (Berardi Constr. Corp. v. Manshul Constr. Corp., 149 A.D.2d 387, appeal dismissed 74 N.Y.2d 842.)
On remand, the IAS court granted plaintiff judgment in the amount of its claim reduced by 25%, because defendant's attorneys in the prior action had charged defendant a 25% contingency fee on amounts recovered. We agree that there was insufficient proof to charge plaintiff for any alleged additional legal fees or expenses. Further, in the prior appeal, we necessarily determined that these other expenses should not be applied to any offset of an award of damages to plaintiff.
Concur — Kupferman, J.P., Sullivan, Carro and Milonas, JJ.