Opinion
2003-05584.
Decided April 12, 2004.
In an action to recover damages pursuant to General Business Law § 198-a, the plaintiff appeals from so much of a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated May 7, 2003, as denied her an award of a statutory attorney's fee.
Sadis Goldberg, LLC, New York, N.Y. (Douglas R. Hirsch and Francis Bigelow of counsel), for appellant.
Rose Law Firm, PLLC, Albany, N.Y. (G. Christopher Gleason of counsel), for respondent General Motors Corporation.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for further proceedings in accordance herewith.
The record does not support a finding that the plaintiff abandoned or waived her request for an award of a statutory attorney's fee ( see General Business Law § 198-a; see generally Genovese v. Gambino, 309 A.D.2d 832, 833; Mondo v. Ellstein, 302 A.D.2d 437, 438; Bono v. Cucinella, 298 A.D.2d 483, 484). Therefore, the Supreme Court should not have denied her request for an award of a statutory attorney's fee without permitting proof on that issue. Accordingly, we remit the matter to the Supreme Court, Dutchess County, to determine whether an award of a statutory attorney's fee is warranted and, if so, the amount, and for the entry of an amended judgment if necessary.
RITTER, J.P., S. MILLER, H. MILLER and CRANE, JJ., concur.