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PETITIONER PREVAILED IN THE FOIL PROCEEDING AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES; HOWEVER, PETITIONER WAS NOT ENTITLED TO LEGAL COSTS INCURRED IN PROSECUTING THE PETITIONER’S CLAIM FOR ATTORNEY’S FEES, SO-CALLED “FEES ON FEES” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner in this FOIL action prevailed and was entitled to attorney’s fees, the petitioner was not entitled to the fees incurred in seeking to recover the attorney’s fees, so-called “fees on fees:”

… [W]e find that the award of attorneys’ fees included amounts for legal fees and costs incurred by the petitioner in prosecuting its claim for an award of attorneys’ fees, or so called “fees on fees.” In New York, an attorney’s fee is “‘merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority'” … . An award of fees on fees—fees for services performed to recover a fee award—also must be based upon a specific contractual provision or statute … . Here, “[g]iven the absence of unmistakably clear intent regarding the recovery of fees on fees [in Public Officers Law § 89(4)(c)], a right to recover those fees should not be implied” … .

As the petitioner is entitled to an award of attorneys’ fees, we remit the matter to the Supreme Court, Kings County, for a new hearing on the issue of the amount of reasonable attorneys’ fees arising solely from the prosecution of this proceeding, without the inclusion of legal fees and costs incurred in prosecuting the petitioner’s claim for an award of attorneys’ fees … . Matter of Aron Law, PLLC v New York City Fire Dept., 2025 NY Slip Op 03806, Second Dept 6-25-25

Practice Point: The prevailing party in a FOIL proceeding is entitled to attorney’s fees. However the petitioner is not entitled to “fees on fees,” i.e., legal costs incurred in prosecuting the claim for attorney’s fees.

 

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