Opinion
(934) CA 01-00531.
September 28, 2001.
(Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER AND BURNS, JJ.
Order unanimously affirmed without costs.
Memorandum:
In appeal No. 1, Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint. Contrary to the contention of plaintiff, its offer to purchase property obtained by defendant in a tax foreclosure sale was not accepted when the Chautauqua County Legislature enacted Resolution 18-2000. The Resolution merely authorized the County Executive to execute a deed; "it did not under these circumstances obligate him. Accepting a grant of authority is not the same as a requirement to exercise the authority. By signing the Resolution, the [County Executive] accepted the grant of authority to act, but he did not obligate himself to act in a specific manner. He did not give up the inherent discretion lodged in his office to later decide not to execute the grant" ( Buffalo Fort Erie Pub. Bridge Auth. v. City of Buffalo, 182 Misc.2d 159, 162 [emphasis deleted]; see, Cicalo v. New York City Hous. Dev. Admin., 79 Misc.2d 769, 773-774; cf., Arcangel v. Holling, 258 App. Div. 180, 183-185). Without acceptance, there can be no binding and enforceable contract ( see, Matter of Express Indus. Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589, rearg denied 93 N.Y.2d 1042).
In appeal No. 2, the court erred in awarding attorney's fees to plaintiff. "`In New York the general rule is that each litigant is required to absorb the cost of his own attorney's fees and a defendant may not be required to pay plaintiff's attorney's fee in the absence of a contractual or statutory liability'" ( Umfrey v. NeMoyer, 184 A.D.2d 1047, 1048, quoting Harradine v. Board of Supervisors, 73 A.D.2d 118, 121; see, Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487, 491). There is neither a contractual nor a statutory basis for the award of attorney's fees to plaintiff in this case. Thus, we reverse the judgment insofar as appealed from and delete the first decretal paragraph.
By failing to appeal from that part of the judgment awarding plaintiff costs, defendant waived its right to challenge that part of the judgment. It is well established that "`[a]n appeal from only part of an order [or judgment] constitutes a waiver of the right to appeal from the other parts of that order [or judgment]'" ( Sugar Creek Stores v. Pitts, 198 A.D.2d 833, quoting Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132, 133).