Header graphic for print
New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Attorneys’ Fees

Subscribe to Attorneys’ Fees RSS Feed

Buyer Comes Up Short in Breach of Contract Action, Where Short Sale Approval by Mortgagee Was Condition Precedent to Sale of Property

Posted in Attorneys' Fees, Banking, Breach of Contract, Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a December 3, 2015 Commercial Division decision by Justice Demarest, the court dismissed a complaint in its entirety that alleged a breach of a contract for the sale of real property, and cancelled the corresponding notice of pendency filed against the subject property by the plaintiffs. 

A 21st Century Litigant’s Credo: I Shall Preserve ESI, or Sanctions Will Follow – Court Strikes Affirmative Defense and Awards Costs and Fees for Defendant’s Grossly Negligent Failure to Preserve ESI

Posted in Attorneys' Fees, Bransten, Eileen, Discovery, Financial services

In a December 7, 2015 Commercial Division decision by Justice Bransten, the court granted the plaintiff’s motion for spoliation sanctions due to the defendant’s failure to preserve electronically stored information (“ESI”).

Second Department Reverses Supreme Court’s Denial of Defendants’ Motion to Dismiss, Finding That Plaintiff Failed to Comply With Court Directive

Posted in 2d Dept, Attorneys' Fees, Breach of Contract, Discovery, Motion to Dismiss, Negligence, Summary Judgment

In a decision dated November 12, 2015, the Appellate Division, Second Department reversed an order from the Queens County Supreme Court, which denied the defendants’ motion to dismiss the plaintiff’s complaint.

Attempts to Avoid Creditors Thwarted When Court Finds Evidence of Intent to Defraud Creditors, Granting Plaintiff Summary Judgment: All County Paving Corp. v Darren Constr. Inc.

Posted in Attorneys' Fees, Construction, Emerson, Elizabeth, Fraud, Suffolk, Summary Judgment

In an August 4, 2015 Commercial Division decision by Justice Elizabeth Emerson, the court denied defendants’ motion for summary judgment to dismiss the complaint, and granted plaintiff’s cross-motion for summary judgment as to one of the defendants.

Dismissal of Claims Brought Five Years Too Late and Award of Attorney’s Fees for Plaintiff’s Frivolous Conduct in Commencing Action Affirmed by Second Department

Posted in 2d Dept, Attorneys' Fees, Construction, Motion to Dismiss, Statute of Limitations

In a decision dated January 21, 2015, the Appellate Division, Second Department, affirmed an order from the Kings County Commercial Division, which granted the defendants’ motion to dismiss the complaint and for an award of attorney’s fees pursuant to 22 NYCRR 130-1.1.

Note to Guarantor Defending against an Alleged Failure to Pay upon Default: Don’t Question the Authenticity of Your Signature and Also Admit You Signed the Guaranty in the Same Affirmation in Opposition

Posted in Arbitration, Attorneys' Fees, Breach of Contract, Demarest, Carolyn E., Discovery, Guaranty, Kings, Limited Liability Companies, Summary Judgment

In an April 15, 2015, Commercial Division decision by Justice Demarest, the court granted plaintiff-lender’s motion for summary judgment based on defendant-guarantor’s failure to repay a loan upon the borrower’s default under a related promissory note.

Purported Debt Acknowledgment Submitted at Oral Argument Insufficient to Restart Limitations Period in Opposition to Dismissal Motion

Posted in 2d Dept, Attorneys' Fees, Breach of Contract, Construction, Motion to Dismiss, Statute of Limitations, Unjust Enrichment

In a decision dated January 21, 2015, the Appellate Division, Second Department, affirmed an order from the Kings County Commercial Division granting defendant-developers’ motion to dismiss as time-barred plaintiff-contractor’s claims for breach of contract and unjust enrichment.

Note to Plaintiff: Attacking Defendants’ Faith and Threatening Their Wives through Direct Contact Will Get You Sanctioned

Posted in Attorneys' Fees, Breach of Contract, Breach of Fiduciary Duty, New York, Ramos, Charles E.

In a December 8, 2014, Commercial Division decision by Justice Ramos, the court granted defendants’ motion for injunctive relief and sanctions against plaintiff corporation and its majority shareholder in an action alleging that defendants exploited plaintiff’s confidential and proprietary information in breach of their fiduciary duties and employment agreements. 

Seller of Commercial Real Property Entitled to Full Deposit for Wrongful Termination by Buyer, Triggering Award of Attorney’s Fees as “Prevailing Party”

Posted in Albany, Attorneys' Fees, Contract Damages, Contract Interpretation, Platkin, Richard, Real estate, Summary Judgment

In a May 14, 2014 decision by Justice Platkin, the Commercial Division, Albany County, denied defendant contract vendee’s motion for summary judgment, and granted summary judgment to plaintiff seller of commercial real estate.   Defendant made a down payment in the form of an “Initial Deposit” of $10,000, placed in escrow upon execution of the Agreement,… Continue Reading

Court Awards Class Counsel One-Third of Amount Sought for Attorney’s Fees and Costs

Posted in Attorneys' Fees, Breach of Fiduciary Duty, Class Action, Legal, New York, Ramos, Charles E.

In a June 13, 2014 Commercial Division decision by Justice Ramos, the court granted in part the plaintiff’s motion for an award of attorneys’ fees and expenses. This class action, which was settled by a negotiated stipulation of settlement, arose from the plaintiff’s allegations that the individual defendants breached fiduciary duties owed to the class… Continue Reading

Plaintiff Corporate Officer Entitled to Advancement of Legal Fees to Defend Against Counterclaims

Posted in Agriculture, Attorneys' Fees, Breach of Fiduciary Duty, Derivative Actions, DeStefano, Vito M., Indemnification, Manufacturing, Nassau, Unjust Enrichment

In a May 14, 2014 Commercial Division decision by Justice DeStefano, the Court found that a plaintiff was entitled to advancement of attorneys’ fees to pay for the defense of counterclaims asserted against him. The litigation began with plaintiff, a shareholder, officer and former director bringing individual and derivative claims against the another shareholder and… Continue Reading

Anticipatory Breach of Real Estate Contract Leads to Loss of Down Payment and Attorneys’ Fees Award: Princes Point L.L.C. v AKRF Eng’g, P.C.

Posted in Anticipatory Repudiation, Attorneys' Fees, Breach of Contract, Fraud, New York, Ramos, Charles E., Real estate, Summary Judgment

In a January 31, 2014 decision by Justice Ramos considering a breach of real estate contract,  the court granted seller defendants’ motion for summary judgment on their counterclaims, dismissing the complaint, and allowing defendant Allied to retain the down payment and certain compaction payments.  In addition, defendants were awarded attorneys’ fees based upon a “prevailing… Continue Reading

Mortgagors’ Failure to Pay Constitutes Default Warranting Foreclosure and Appointment of Receiver: Peny & Co. v Food First Housing Development Fund Co. Inc. et al.

Posted in Attorneys' Fees, Demarest, Carolyn E., Financial services, Kings, Summary Judgment

In a May 31, 2013 decision by Justice Demarest, the court granted a mortgagee’s motion for summary judgment for an Order of Reference and the appointment of a receiver.  The litigation arose from a loan on a commercial property.  Pursuant to the loan, the mortgagors were required to pay all property taxes and water charges. … Continue Reading

Summary Judgment Granted in Part on Subcontractor’s Claim for Breach of Subcontract Labor and Material Bond: Nunez Elec. Inc. v Fidelity and Deposit Co. of MD

Posted in Attorneys' Fees, Breach of Contract, Construction, Kitzes, Orin R., Queens, Summary Judgment

In a May 7, 2013 decision by Justice Kitzes, the court granted the plaintiff-subcontractor’s motion for summary judgment in part, as to the claim for breach of a subcontractor’s labor and material payment bond, which arose in connection with a public improvement construction project in Queens. The plaintiff commenced this action against the defendant-surety alleging… Continue Reading

Court Dismisses Claim for Abuse of Process, Allows Claim for Legal Malpractice in Action arising from Mortgage Foreclosure: Ferreira v Citiwide Real Estate & Mgt. Co.

Posted in Attorneys' Fees, Declaratory Judgment, Fraud, Kitzes, Orin R., Legal, Legal Malpractice, Malpractice, Queens, Real estate, Summary Judgment

In a May 8, 2013 decision by Justice Kitzes, the court granted the defendant Deutsche Bank’s motion for summary judgment dismissing the complaint, denied defendant Solda’s motion for summary judgment, and cancelled a notice of pendency against the East Elmhurst property (the “Property”) at issue, which was owned by Ferria. Deutsche Bank was previously awarded… Continue Reading

State Court Lacks Subject Matter Jurisdiction to Confirm Arbitration Award based on Violations of the Securities Exchange Act : Copperill v Sloane

Posted in Arbitration, Attorneys' Fees, Bucaria, Stephen A., Discovery, Fraud, Nassau, Order to Show Cause, Unjust Enrichment

In a November 28, 2012 decision by Justice Bucaria, the court denied the petitioner’s motion to restrain the brokerage account of the respondent’s wife; on its own motion vacated its prior order confirming an arbitration award (the “Award”) and denied the petition to confirm the Award, but granted leave to recommence the petition in an… Continue Reading

Defendant Granted Leave to Amend to add Counterclaims and Defenses Arising from the Same Facts Underlying Plaintiff’s Case: Mauray Realty Co. v Advantage Plastics, Inc.

Posted in Attorneys' Fees, Breach of Lease, Conversion, Kapnick, Barbara R., Leave to Amend, New York, Real estate

In a July 16, 2012 decision by Justice Kapnick, the court granted in part and denied in part the defendant’s motion for leave to amend its verified answer and counterclaims. The case involved a fifteen year lease of a commercial space in a mixed use building entered into by the plaintiff- landlord (“Mauray”) and defendant-… Continue Reading

Summary Judgment Granted Based on Plain and Unambiguous Meaning of Term: Brio Capital, L.P. v Sanswire Corp.

Posted in Attorneys' Fees, CPLR 3212, Declaratory Judgment, Financial services, Fried, Bernard J., New York, Plain Meaning, Summary Judgment

In a December 21, 2011 decision by Justice Fried, the court granted Brio’s motion for summary judgment with respect to its first cause of action seeking declaratory relief, and granted Brio’s motion for an award of reasonable attorney’s fees.       Brio loaned Sanswire, a publicly-traded company that manufactures unmanned aerial reconnaissance vehicles, $125,000 subject to a… Continue Reading

Client’s Termination of “General Retainer” Can Be A Breach of Contract: National Grid Cop. Serv., LLC v. LeSchak & Grodensky, P.C.

Posted in Attorneys' Fees, Breach of Contract, Bucaria, Stephen A., Good faith and fair dealing, Legal, Summary Judgment

In an October 26, 2011 decision by Justice Bucaria the court denied cross-motions for summary judgment finding that issues of fact precluded dismissing either parties’ claims. The dispute arose from National Grid’s retention of the defendant law firm to commence replevin actions to seize and recover utility meters from non-paying customers, in addition to other legal… Continue Reading

Defendants Not Preliminarily Enjoined from Using Partnership Assets to Pay Litigation Costs: Katz v Beil

Posted in Attorneys' Fees, Breach of Fiduciary Duty, Driscoll, Timothy, Nassau, Preliminary Injunction, Sports

In an August 15, 2011 decision by Justice Driscoll, the court denied the plaintiff’s motion for a preliminary injunction to preclude the defendants from using the assets belonging to a general partnership, of which the parties were all partners, to pay the legal fees the defendants incurred in the litigation. The partnership owned a gold… Continue Reading

Action Against Swimming Pool Installer For Defective Installation is Dismissed: Rush v. Swimming Pools by Jack Anthony, Inc.

Posted in Attorneys' Fees, Breach of Contract, Construction, Motion to Dismiss, Nassau, Negligence, Warshawsky, Ira B.

In an April 25, 2011 decision by Justice Warshawsky, the Court granted defendant’s motion to dismiss all six claims asserted, thus dismissing the action.   Plaintiffs had contracted with defendant to install a vinyl swimming pool at plaintiffs’ Water Mill home.   Ultimately, the pool was constructed, and plaintiffs complained of various defects. Specifically, plaintiffs complained that the… Continue Reading

Attorney Affirmation in Opposition Utterly Fails To Raise an Issue of Fact or Otherwise Defeat Summary Judgment: General Elec. Capital Corp. v Miron Lbr. Co. Inc.

Posted in Attorneys' Fees, Breach of Contract, Breach Of Guaranty, Contract Of Adhesion, CPLR 3212, Guaranty, New York, Ramos, Charles E., Summary Judgment

In a July 8, 2011, decision by Justice Ramos, the court granted plaintiff-lender’s motion for summary judgment on its claims for breach of contract and guaranty, as well as dismissed defendant-borrower’s counterclaim and affirmative defenses. Notably, the court began its analysis with a footnote admonishing both parties for violating a practice rule providing that “Memos of… Continue Reading