Opinion
2012-647 OR C
05-13-2013
Robert Marcoux, Respondent, v. Central Hudson Gas & Electric Corp., Appellant.
PRESENT: : , P.J., IANNACCI and TOLBERT, JJ
Appeal from a judgment of the Justice Court of the Town of New Windsor, Orange County (Richard W. Thorpe, J.), entered January 4, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,227.72.
ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $227.72; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this action to recover the sum of $1,754.37 for damages he had allegedly suffered after defendant had turned off his electrical service. At a nonjury trial, plaintiff testified that when he had returned to his home on June 1, 2011, he had discovered that defendant Central Hudson Gas & Electric Corp. had cut off his electric service. Defendant's representative testified that, on that day, he had visited plaintiff's property to perform a routine inspection and electric meter replacement, but that, upon discovering a potentially dangerous defect in plaintiff's electric meter pan, he had cut off plaintiff's electric service until the problem could be remedied. The next day, plaintiff's electrician installed a new meter pan, and plaintiff's electric service was restored. Following trial, the Justice Court awarded plaintiff the principal sum of $1,227.72, which sum included $1,000 in attorney's fees.
At trial, plaintiff's expert witness, who identified himself as a master electrician, testified that he had examined plaintiff's meter pan and had observed it to be damaged. He asserted that, in his professional opinion, the meter pan could only have been damaged when it had been removed by defendant, since, had it been in its defective post-removal condition while it was in operation, there would have been ancillary damage as well, but that there was no evidence that such damage had occurred. Although defendant's witness contradicted the testimony of plaintiff's expert witness with respect to the cause of the damage to plaintiff's meter pan, we conclude that there was sufficient evidence of defendant's negligence.
With respect to damages, we note that attorney's fees may not be awarded except where authorized by statute, agreement or court rule (see e.g. U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597 [2004]; Great Neck Terrace Owners Corp. v McCabe, 101 AD3d 944 [2012]). As plaintiff has failed to identify any statute, agreement or rule pursuant to which he would be entitled to recover his attorney's fees, there was no basis for such recovery. However, with respect to the remaining items of damage, we find no basis to disturb the judgment of the Justice Court.
Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $227.72.
Nicolai, P.J., Iannacci and Tolbert, JJ., concur.