Opinion
December 3, 1970
Order of the Supreme Court, New York County, entered on March 3, 1970, denying plaintiff's motion to dismiss the defendant's second defense and counterclaim, unanimously reversed, on the law, the motion granted, and defendant's second defense and counterclaim dismissed. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The defendant has come forward with no factual support, neither in its answer nor in its opposing affidavit, not made by a party, sufficient to warrant a conclusion that this action was maliciously instituted. The complaint seeking damages and an injunction, prima facie, is an action on the theory of unfair competition. We cannot suffer a counterclaim and a defense, based on unsupported allegations of malice to be the base of a counter-action for legal expenses. This would raise collateral matters and obfuscate the central issue of the complaint. In any event, attorney's fees are normally a nonrecoverable item. We find no justification, on this submission, for any departure from this sound rule. The defendant is not within Shindler v. Lamb ( 25 Misc.2d 810, affd. 10 A.D.2d 826, affd. 9 N.Y.2d 621) nor Fugazy Travel Bureau v. Ernst Ernst ( 31 A.D.2d 924).
Concur — Stevens, P.J., Eager, Capozzoli and McGivern, JJ.