ALTHOUGH PLAINTIFF WAS ENTITLED TO ATTORNEY’S FEES IN THE ORIGINAL SUIT ON THE NOTE, PLAINTIFF WAS NOT ENTITLED TO “FEES ON FEES” INCURRED DEFENDING DEFENDANTS’ APPEAL OF THE ORIGINAL JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff (Davidoff) was not entitled to an award of “fees on fees.” Defendants (the Hershfields) had appealed a judgment on a note which included and award of attorney’s fees to Davidoff. Davidoff then sued the Hershfields for the attorney’s fees incurred in defending the appeal, so-called “fees on fees.” The Second Department held that the language of the note did not support a “fees on fees” award:​

Davidoff commenced the instant action against the Hershfields, alleging that under the terms of the note, he was entitled to recover attorneys’ fees and costs in connection with the prior appeal and in bringing this action. …

… Supreme Court granted Davidoff’s cross-motion for summary judgment on the issue of liability … . The court determined that Davidoff was entitled to recover his attorneys’ fees in connection with the prior appeal and the instant action under the clear terms of the note. …

… Supreme Court should have denied Davidoff’s cross-motion for summary judgment on the issue of liability and should have granted the Hershfields’ motion pursuant to CPLR 3211(a) to dismiss the complaint. “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” … . “[A]n award of attorneys’ fees for the costs incurred in prosecuting a claim for an award of attorneys’ fees, so called ‘fees on fees,’ must be based upon a specific contractual provision or statute” … . “Consequently, where 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” … .

… Davidoff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability for breach of contract. The note did not contain clear language expressly providing for the prevailing party to recover fees on fees or any reference to fees incurred to recover attorneys’ fees … . “Given the absence of unmistakably clear intent regarding the recovery of fees on fees, a right to recover those fees should not be implied” … . Davidoff v Hershfield, 2026 NY Slip Op 05931, Second Dept 10-14-26

Practice Point: To recover “fees on fees” the relevant contract must explicitly refer to fees incurred to recover attorney’s fees.