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IN THIS LABOR LAW 240 (1) ACTION, PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP).

The Court of Appeals, reversing the appellate division, determined there was a question of fact whether plaintiff’s own conduct was the sole proximate cause of his injuries. Plaintiff had constructed a ramp out of greasy planks to move from the roof to a scaffold. Plaintiff slipped and fell from the ramp:

We agree with the Appellate Division that the fall of … plaintiff was the result of an elevation-related risk for which Labor Law § 240 (1) provides protection. We further conclude, however, that there is a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of the accident” … . Viewing the facts in the light most favorable to defendants, as we must … , we conclude that plaintiff’s foreman arguably provided conflicting accounts of whether plaintiff had “adequate safety devices available,” whether “he knew both that they were available and that he was expected to use them,” whether “he chose for no good reason not to do so,” and whether “had he not made that choice he would not have been injured” … . Valente v Lend Lease (US) Constr. LMB, Inc., 2017 NY Slip Op 06400, CtApp 9-5-17

LABOR LAW-CONSTRUCTION LAW (IN THIS LABOR LAW 240 (1) ACTION PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, IN THIS LABOR LAW 240 (1) ACTION PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP))

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PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP).

The Court of Appeals determined the Working Families Party’s petition to add NYC Mayor Bill de Blasio as a mayoral candidate in a primary election was properly denied for failure to name the party’s Executive Board as a necessary party:

Necessary parties are those “who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” (CPLR 1001[a]). Appellants rely on Matter of O’Brien v Seneca County Bd. of Elections (22 AD3d 1036, 1036 [4th Dept 2005]) and Matter of Seaman v Bird (176 AD2d 1061, 1062 [3d Dept 1991]), to argue that, because complete relief could be obtained from the Board of Elections, the Executive Board of the Working Families Party is not a necessary party. Their reliance is misplaced. Here, where petitioners assert that the Executive Board’s certificate of authorization was invalid under Election Law § 6-120, the Executive Board of the Working Families Party was a necessary party because a judgment on this issue could inequitably affect its interests. To the extent that there are other decisions to the contrary, they should not be followed. Matter of Morgan v de Blasio, 2017 NY Slip Op 06399, CtApp 8-31-17

ELECTION LAW (PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP))/CIVIL PROCEDURE (ELECTION LAW, PETITION TO ADD MAYOR DE BLASIO AS A CANDIDATE PROPERLY DENIED, THE WORKING FAMILIES PARTY’S EXECUTIVE BOARD WAS A NECESSARY PARTY (CT APP))

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LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the landlord’s motion for summary judgment should have been granted. Plaintiffs alleged they were injured during a robbery and the landlord failed to provide sufficient protection in the form of a lock on an interior door through which the robbers gained entry. The Second Department held the landlord had demonstrated the break-in was not foreseeable because there had been no other similar break-ins:

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . “To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” …  ” Without evidentiary proof of notice of prior criminal activity, the owner’s duty reasonably to protect those using the premises from such activity never arises”‘… .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they lacked notice of the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject premises … . Golub v Louris, 2017 NY Slip Op 06353, Second Dept 8-30-17

 

NEGLIGENCE (LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LANDLORD-TENANT (LIABILITY IN NEGLIGENCE FOR THIRD PARTY ASSAULT, LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/ASSAULT (LANDLORD-TENANT, LIABILITY IN NEGLIGENCE FOR THIRD PARTY ASSAULT, LANDLORD DEMONSTRATED THE BREAK-IN WAS NOT FORESEEABLE BECAUSE THERE HAD BEEN NO SIMILAR BREAK-INS IN THE VICINITY, PLAINTIFFS’ SUIT STEMMING FROM INJURY DURING A ROBBERY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined the defendant town’s motion for summary judgment in this ice and snow slip and fall case was properly granted. The court held that the failure to remove ice and snow is a passive in nature and is not an affirmative creation of a dangerous condition that is exempt from the written notice requirement:

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from its Town Clerk, demonstrating that it did not receive prior written notice of the condition alleged, and that it did not create the alleged condition through an affirmative act of negligence. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town created the alleged condition through an affirmative act of negligence. The plaintiff’s reliance on San Marco v Village/Town of Mount Kisco (16 NY3d 111) is misplaced. The Town’s failure to remove any snow or ice from the area where the subject accident occurred was passive in nature and does not constitute an affirmative act of negligence excepting it from prior written notice requirements … . Morreale v Town of Smithtown, 2017 NY Slip Op 06361, Second Dept 8-30-17

NEGLIGENCE (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SLIP AND FALL  (TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT)/WRITTEN NOTICE (SLIP AND FALL, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE, TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s (Kostadinov’s) motion for summary judgment in this bicycle-car accident case should not have been granted. Kostadinov did not eliminate triable questions of fact about his comparative negligence:

Here, Kostadinov failed to demonstrate his prima facie entitlement to judgment as a matter of law, since the evidence submitted in support of his motion failed to establish that he was free from fault in the happening of the accident, or that the alleged negligence of the plaintiff and Karczewski were the sole proximate causes of the accident … . Specifically, the deposition testimony of all of the parties, submitted by Kostadinov in support of his motion, revealed the existence of triable issues of fact as to the manner in which the accident occurred (see id. at 934) and as to whether the impact between the plaintiff’s bicycle and Karczewski’s vehicle was a foreseeable consequence of Kostadinov reversing his vehicle against the flow of traffic within the subject intersection given the traffic conditions existing at the time of the accident … . Searless v Karczewski, 2017 NY Slip Op 06393, Second Dept 8-30-17

NEGLIGENCE (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment discharging a mortgage after the statute of limitations on the foreclosure action had expired should have been granted. The court explained that the six year statute started to run when the debt was accelerated by the foreclosure action that was ultimately dismissed. The plaintiff demonstrated that the dismissed foreclosure action was commenced by a party with standing:

… [W]ith respect to an action pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage had expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharged the mortgage was commenced … . An action to foreclose a mortgage has a six-year statute of limitations… . “The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt”… .

Here, the plaintiff submitted a copy of the summons and complaint filed in the mortgage foreclosure action commenced by the defendant’s predecessor-in-interest and the order dismissing that action pursuant to CPLR 3216 which demonstrated that the mortgage was accelerated in 2008 more than six years before the commencement of this action and that there was no longer a pending mortgage foreclosure action … . In addition, the summons and the complaint, along with the subject mortgage documents, submitted by the plaintiff on its motion, demonstrated that the defendant’s predecessor-in-interest had standing to commence the mortgage foreclosure action ….

Further, the plaintiff demonstrated that the applicable statute of limitations had expired even if the limitations period was calculated … the date by which the Federal Deposit Insurance Corporation was appointed as receiver for the defendant’s predecessor-in-interest  …. . 53 PL Realty, LLC v US Bank N.A., 2017 NY Slip Op 06345, Second Dept 8-30-17

 

FORECLOSURE (DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))

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TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the defendant’s conviction finding that evidence of a prior similar stabbing of the same victim was too prejudicial to be admissible. The evidence of defendant’s connection to the prior stabbing was weak. The victim refused to cooperate with the investigations into both stabbings. Therefore the trial court should not have ruled the defendant could be cross-examined about the prior stabbing if he chose to testify (he did not testify):

Although questioning concerning other crimes and past conduct is not automatically precluded simply because the crime or conduct inquired about is similar to the crime charged … , “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” … . Thus, “a balance must be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf” … . Under the circumstances presented here, most notably the unsubstantiated evidence connecting the defendant to the uncharged crime involving the identical victim, which occurred three months earlier, the probative value was far outweighed by the danger of undue prejudice. There was a strong likelihood that the uncharged crime would be viewed as evidence of propensity, rather than probative on the issue of credibility … . People v Ridenhour, 2017 NY Slip Op 06383, Second Dept 8-30-17

CRIMINAL LAW (SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW,  TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))

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PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People did not demonstrate, at a Sirois hearing, that a witness’s refusal to testify was the result of defendant’s threats. The trial court had ruled the witness’s grand jury testimony could be read to the jury. The Second Department also held the court should have inquired into the defense attorney’s request to be relieved because the defendant had filed a grievance against him:

At the Sirois hearing, the People were required to “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness’s unavailability” … . Here, although the People presented evidence that the witness was afraid to testify, they failed to meet their heavy burden of showing that her fear was caused by a threat made by the defendant … .

Under the circumstances of this case, this error cannot be considered harmless … . Thus, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for a new trial … .

The Supreme Court also should not have denied defense counsel’s request to be relieved without first having made at least some minimal inquiry in light of defense counsel’s statement that the defendant had filed a grievance against him … . People v Middleton, 2017 NY Slip Op 06378, Second Dept 8-30-17

 

CRIMINAL LAW (PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/SIROIS HEARING (CRIMINAL LAW, PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))

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CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT).

The Second Department reversed defendant’s conviction because instructions to the jury and the verdict sheet created confusion about the effect of finding the defendant not guilty of the most serious offense based on the justification defense. The instructions gave the impression the jurors could continue to consider a lesser offense after finding the justification defense required a not guilty verdict on more serious offense:

“This Court has held that, in a case involving a claim of self-defense, it is error for the trial court not to instruct the jurors that, if they find the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts” … . Such failure constitutes reversible error … . “Our precedent in this regard is sound and ineluctable. The defense of justification does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful'” … .

… [W]hen instructing the jury on the verdict sheet, the court did not instruct that, if the jury found the defendant not guilty of a greater charge on the basis of justification, it was not to consider any lesser count, and the verdict sheet was inconsistent with that principle … . In particular, the verdict sheet, which made no reference to justification, instructed the jury that, if it found the defendant not guilty on count one or count two, the jury must “deliberate next on” the following count. Similarly, in explaining the verdict sheet, the court instructed the jury, if the verdict on count one or count two was not guilty, to “go on” and to “deliberate” on the next count, without explaining that they should not deliberate on any lesser-included count if the jury found the defendant not guilty based upon the People’s failure to disprove the defense of justification. People v Braithwaite, 2017 NY Slip Op 06369, Second Dept 8-30-17

 

CRIMINAL LAW (CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))

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WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT).

The Second Department determined the successful motion to dismiss a civil suit did not mandate the award of attorney’s fees under the CPLR:

… “[U]nder the American Rule as applied to statutory entitlement to attorneys’ fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority”… . * * *

The relevant phrase of CPLR 3220 stating that the claimant “shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer” demonstrates the Legislature’s intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party’s expenses. This phrase also defines the recoverable expenses as those “necessarily” expended “for trying the issue of damages.” CPLR 3220 further provides that those expenses should be determined by the judge “before whom the case is tried.” Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney’s fees and costs to a party … who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney’s fees and costs … , the public policy of the American Rule militates against adoption of that interpretation … . Saul v Cahan, 2017 NY Slip Op 06391, Second Dept 8-30-17

CIVIL PROCEDURE (WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))/ATTORNEYS (FEES, CIVIL PROCEDURE, WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))

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