the counterclaim"). On reconsideration of defendant's request for counsel fees, the court concludes on the basis of the authorities called to its attention that since defendant has overwhelmingly succeeded under its counterclaims and to a substantially greater extent than did plaintiffs on their complaint, the Trust is entitled to be awarded its reasonable counsel fees.
Defendant Burch in his individual capacity also requests an award of attorney's fees inasmuch as his motion for summary judgment of dismissal was granted by Judge Cedarbaum. Although Judge Cedarbaum found that there was no justification for suing Birch individually and such suit was frivolous (March 23, 1990 transcript, p. 21-22), unfortunately Birch's request (in his individual capacity) for counsel fees as the "prevailing party" must be denied. Birch in his individual capacity although a party to this lawsuit was not a party to the Agreement, which is a contractual predicate for a fee-shifting award of counsel fees to the "prevailing party." However, since an award of costs to the prevailing party is provided by Fed.R.Civ.P. 54(d), Birch is awarded costs in both his individual capacity and capacity as Trustee.
The court does not concur with defendant's argument, previously addressed in the original opinion, that because § 17 of the Agreement refers to Local Law 5, the Trust was not obligated to reimburse Goldman for installing a fire system in compliance with Local Law 16. It was previously mentioned that Local Law 5 applies to buildings other than Hotels. The court may readily infer from the context of the provision that both parties intended the inept reference to "the balance of Local Law 5" (Agreement, § 17, emphasis added) as merely a short-hand description for additional fire alarm system work in the Hotel required by the New York City fire code.
Since Local Law 5 applies to fire protection systems, but in buildings other than hotels, defendant's literal reading of the contract to refer to reimbursement to Goldman for only work under Local Law 5 simply ignores the substance of their agreement and attempts to take advantage of an error in citing the applicable Local Law. Defendant's argument results in ascribing to the parties an intent to provide a meaningless and ineffectual - indeed absurd - agreement regarding reimbursement to Goldman for fire alarm system work. Fundamentally, a literal reading of contract language should be eschewed by the court where such interpretation makes the provision in question absurd or meaningless, and the substance of parties' agreement may be gleaned and effectuated consistently with their obvious intent. Accordingly, the court adheres to original findings and conclusions.
Finally, plaintiffs contend that defendant's cross-motion, filed on December 13, 1991 is untimely under Fed.R.Civ.P. 52(b) since it was not made within the ten days after the entry of judgment permitted by the rule, and that the ten day period may not be extended by the court under Fed.R.Civ.P. 6(b). Defendant, however, has not requested an extension of time under Rule 6(b) and maintains, correctly, that its cross-motion filed on December 13, 1991 was made within ten business days after entry of judgment on November 29, 1991, and is therefore timely under Fed.R.Civ.P. 6(a).
For the foregoing reasons, it is hereby ORDERED:
1. The judgment entered on November 29, 1991 is hereby vacated and the Findings of Fact and Conclusions of Law as set forth in the opinion of November 25, 1991 are modified to the extent indicated
2. Within thirty (30) days of the entry of this order the Trust shall file in this court and serve plaintiffs with an application for an award of counsel fees with supporting documentation. Plaintiffs may respond to such application within twenty (20) days after service of the application; defendant may thereafter file and serve a reply within five (10) days after service of plaintiffs' response.
New York, New York
January 13, 1992
Bernard Newman, U.S.D.J. by designation