Opinion
2022–07559 Index No. 601458/22
09-20-2023
WFB REALTY, LLC, respondent, v. R & W BROKERAGE, INC., appellant (and a third-party action).
Sullivan & Klein, LLP, New York, NY (Robert M. Sullivan of counsel), for appellant. John G. Aicher, Jr., Garden City, NY, for respondent.
Sullivan & Klein, LLP, New York, NY (Robert M. Sullivan of counsel), for appellant.
John G. Aicher, Jr., Garden City, NY, for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered August 17, 2022. The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought an award of attorney's fees.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought an award of attorney's fees is granted.
The plaintiff commenced this action against the defendant, inter alia, to recover damages for breach of contract for an alleged failure to procure insurance coverage for the plaintiff. The plaintiff also sought to recover, among other things, attorney's fees. Thereafter, the defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought an award of attorney's fees. In an order entered August 17, 2022, the Supreme Court, inter alia, denied that branch of the defendant's motion which was to dismiss so much of the complaint as sought an award of attorney's fees.
"New York follows the general rule that attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" ( Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., 197 A.D.3d 1274, 1282, 154 N.Y.S.3d 113 ; see Sage Sys., Inc. v. Liss, 39 N.Y.3d 27, 30–31, 177 N.Y.S.3d 525, 198 N.E.3d 768 ). Here, the defendant established that there is no agreement, statute, or court rule which would entitle the plaintiff to an award of attorney's fees should it prevail against the defendant (see Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., 197 A.D.3d at 1282, 154 N.Y.S.3d 113 ; Specialized Prods. & Servs., Inc. v. Steelbro Intl. Co., Inc., 161 A.D.3d 1127, 1128, 77 N.Y.S.3d 689 ; see also Hershfeld v. JM Woodworth Risk Retention Group, Inc., 213 A.D.3d 651, 652, 181 N.Y.S.3d 667 ).
The plaintiff's contentions that attorney's fees may be recoverable pursuant to a statutory exception or as consequential damages where a policyholder commences a breach of contract action against an insurance company were not advanced before the Supreme Court in opposition to the defendant's motion. These contentions, raised for the first time on appeal, are not properly before this Court (see Economy Premier Assur. Co. v. Miflex 2 S.p.A., 212 A.D.3d 775, 777, 182 N.Y.S.3d 189 ; Timmons v. Town of Babylon, 211 A.D.3d 763, 765, 180 N.Y.S.3d 219 ).
Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought an award of attorney's fees.
DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.