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PLAINTIFF PREVAILED IN THIS BREACH OF CONTRACT ACTION; HOWEVER, ABSENT A CONTRACT PROVISION, OR A STATUTE OR COURT RULE ALLOWING THE AWARD, PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should not have been awarded attorney’s fees in this breach of contract action because the contract did not so provide:

“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” … . “It is not uncommon, however, for parties to a contract to include a promise by one party to hold the other harmless for a particular loss or damage and counsel fees are but another form of damage which may be indemnified in this way” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .

Here, the contract did not provide for the recovery of attorneys’ fees that resulted from the instant litigation, and the plaintiff failed to establish that a statute or court rule would entitle her to an award of attorneys’ fees. Wolf v Vestra SPV3, LLC, 2024 NY Slip Op 06232, Second Dept 12-11-24

Practice Point: The general rule in New York is, absent a contract provision or a statute or court rule allowing the award of attorney’s fees, the winner of a lawsuit cannot collect attorney’s fees from the loser.

 

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