You are here: / / Defendant Not Entitled to Attorney’s Fees after Plaintiff’s...
, , ,

Defendant Not Entitled to Attorney’s Fees after Plaintiff’s Motion for a Voluntary Discontinuance in a Foreclosure Action Was Granted Without Prejudice—Defendant Was Not a “Prevailing Party” within the Meaning of Real Property Law 282—Denial of Attorney’s Fees Was Not an Abuse of Discretion Under CPLR 3217 (c)

After the grant of plaintiff’s motion for a voluntary discontinuance (without prejudice) of a foreclosure action defendant (Rivera) sought the award of attorney’s fees pursuant to Real Property Law 282 and CPLR 3217 (b). The Second Department determined Supreme Court properly denied the request for attorney’s fees. Under the Real Property Law, the prevailing party is entitled to attorney’s fees, but plaintiff’s voluntary discontinuance was not on the merits.  Therefore defendant was not the prevailing party within the meaning of the statute. The award of attorney’s fees under CPLR 3217 (b) is discretionary and Supreme Court did not abuse its discretion in denying the request:

In New York, “attorneys’ fees are deemed incidental to litigation and may not be recovered unless supported by statute, court rule or written agreement of the parties” … .

[Real Property Law 282] provides that “[w]henever a covenant contained in a mortgage on residential real property shall provide that . . . the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage . . . there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor . . . in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract” (Real Property Law § 282). * * *

Here, the voluntary discontinuance of this action pursuant to CPLR 3217(c) was without prejudice and there was no substantive determination on the merits of either the plaintiff’s cause of action or Rivera’s counterclaims and defenses. Accordingly, Rivera was not a prevailing party for the purposes of Real Property Law § 282 and was not entitled to an award of an attorney’s fee for a “successful defense” of this foreclosure action (Real Property Law § 282…).

* * * The determination of whether to award an attorney’s fee [pursuant to CPLR 3217 (c)] as a condition of granting a voluntary discontinuance is a matter left to the sound discretion of the court … . Here, under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of Rivera’s motion which was for an award of an attorney’s fee pursuant to CPLR 3217(b) … . DKR Mtge. Asset Trust 1 v Rivera, 2015 NY Slip Op 06108, 2nd Dept 7-15-15

 

You might also like
In the Absence of Finding of Aggravating Circumstances an Order of Protection Cannot Exceed Two Years
THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).
Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist
DEFENDANT MADE A SUDDEN LEFT TURN IN FRONT ACROSS PLAINTIFF’S RIGHT OF WAY, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.
SUPREME COURT DID NOT MAKE THE REQUIRED FINDINGS RE: WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (SECOND DEPT).
One- and Two- Family Homeowners’ Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner’s Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action
PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).
Suit Against Municipality Based Upon Exercise of a Governmental Function Properly Dismissed—No Special Duty to Plaintiff

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

“Special Facts Doctrine” as Applied to Fraud Allegations Explai... Two-Part Inquiry for Determining Whether a Dispute is Arbitrable Under a Collective...