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
Criteria for Accelerated Relief Re: a Promissory Note Explained–Conclusory Allegations of Fraud in the Inducement Insufficient to Defeat Summary Judgment
QUESTIONS OF FACT WHETHER THE SCHOOL PERSONNEL PROPERLY INSTRUCTED INFANT PLAINTIFF ON THE USE OF THE ZIP LINE FROM WHICH SHE ALLEGEDY FELL (SECOND DEPT).
DEFENDANTS’ FAILURE TO DEMONSTRATE THE NORMAL RISKS ASSOCIATED WITH HORSEBACK RIDING WERE NOT UNREASONABLY INCREASED BY THE RIDING INSTRUCTOR REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.
THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​
THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).
OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT).
EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE.
Providing a False Name During Booking Did Not Trigger the Need for a Miranda Warning

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Second Voluntary Discontinuance Operated as an Adjudication on the Merits Requiring... Constructive Trust Cause of Action Did Not Accrue When Defendant Acquired the...