Submitted - February 2, 2017
Burstein, P.C., New York, NY, for appellant.
& Associates, P.C., New York, NY (Lauren B. Lepore, Greg
B. Lichtenstein, Christopher B. Spuches, and Jason A.
Martorella of counsel), for respondent.
REINALDO E. RIVERA, J.P. RUTH C. BALKIN CHERYL E. CHAMBERS
JEFFREY A. COHEN, JJ.
DECISION & ORDER
from (1) an order of the Supreme Court, Kings County (Carolyn
E. Demarest, J.), dated March 9, 2016, and (2) a money
judgment of that court dated March 28, 2016. The order
granted the defendant's motion for attorney's fees
and costs. The money judgment, upon the order, is in favor of
the defendant and against the plaintiff in the total sum of
that the appeal from the order is dismissed; and it is
further, ORDERED that the money judgment is reversed, on the
law, the order is vacated, and the defendant's motion for
attorney's fees and costs is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed, as the order was
superseded by the money judgment.
2013, the plaintiff allegedly entered into an oral agreement
with the defendant Eric Cahan pursuant to which Cahan agreed
to act as the plaintiff's art advisor regarding the
acquisition of contemporary artworks in exchange for a
consulting fee in the amount of 10% of the cost of the
artworks purchased. Additionally, the alleged oral agreement
required Cahan to give the plaintiff the right of first
opportunity to purchase all artworks offered to Cahan by art
galleries or dealers before Cahan could purchase them for
himself or offer them to a third party.
terminating the alleged agreement, the plaintiff commenced
this action, alleging, inter alia, that Cahan fraudulently
induced him to enter into the alleged oral agreement, and
that Cahan breached his contractual and fiduciary duties. The
plaintiff asserted causes of action alleging breach of
fiduciary duty, breach of contract, and fraud, among others.
In May 2014, Cahan moved, inter alia, pursuant to CPLR
3211(a)(7) to dismiss the amended complaint insofar as
asserted against him. Shortly thereafter, on June 20, 2014,
Cahan served an offer to liquidate damages pursuant to CPLR
3220. The plaintiff did not accept the offer. By order dated
November 7, 2014, the Supreme Court granted Cahan's
motion to dismiss the amended complaint insofar as asserted
against him. Cahan then moved for an award of attorney's
fees and costs pursuant to CPLR 3220. By order dated March 9,
2016, the court granted Cahan's motion to the extent of
determining that Cahan was entitled to attorney's fees in
the sum of $15, 557.37, plus interest. A money judgment dated
March 28, 2016, was entered in favor of Cahan and against
Saul in the total sum of $16, 697.14. The plaintiff appeals,
and we reverse.
matters of statutory interpretation, the primary
consideration is to discern and give effect to the
Legislature's intention (see Yatauro v Mangano,
17 N.Y.3d 420, 426; Roberts v Tishman Speyer Props.,
L.P., 13 N.Y.3d 270, 285-286; Matter of Daimler
Chrysler Corp. v Spitzer, 7 N.Y.3d 653, 660).
"[T]he text of a provision 'is the clearest
indicator of legislative intent and courts should construe
unambiguous language to give effect to its plain
meaning'" (Matter of Albany Law School v New
York State Off. of Mental Retardation & Dev.
Disabilities, 19 N.Y.3d 106, 120, quoting Matter of
Daimler Chrysler Corp. v Spitzer, 7 N.Y.3d at 660;
see Majewski v Broadalbin-Perth Cent. School Dist.,
91 N.Y.2d 577, 583). An examination of the legislative
history is proper "where the language is ambiguous or
where a literal construction would lead to absurd or
unreasonable consequences that are contrary to the purpose of
the enactment" (Matter of Auerbach v Board of Educ.
of City School Dist. of City of N.Y., 86 N.Y.2d 198,
204; see New York State Psychiatric Assn., Inc. v New
York State Dept. of Health, 19 N.Y.3d 17, 25-26).
"under 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" (Baker v
Health Mgmt. Sys98 N.Y.2d 80, 88 [internal quotation
marks omitted]; see 214 Wall St. Assoc., LLC v Medical
Arts-Huntington Realty, 99 A.D.3d 988, 990).
"'New York public policy disfavors any award of
attorneys' fees to the prevailing party in a
litigation'" (Pickett v 992 Gates Ave.
Corp., 114 A.D.3d 740, 740, quoting Horwitz v 1025
Fifth Ave., Inc., 34 A.D.3d 248, 249).
"'Statutes authorizing an award of costs and
sanctions are in derogation of common law and, therefore must
be strictly construed'" (State Farm Fire &
Cas. v Parking Sys. Valet Serv, 85 A.D.3d 761, 764,
quoting Saastomoinen v Pagano, 278 A.D.2d218, 218).
CPLR 3220 states:
"At any time not later than ten days before trial, any
party against whom a cause of action based upon contract,
express or implied, is asserted may serve upon the claimant a
written offer to allow judgment to be taken against him for a
sum therein specified, with costs then accrued, if the party
against whom the claim is asserted fails in his defense. If
within ten days thereafter the claimant serves a written
notice that he accepts the offer, and damages are awarded to
him on the trial, they shall be assessed in the sum specified
in the offer. If the offer is not so accepted and the
claimant fails to obtain a more favorable judgment, he 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. The expenses shall be ascertained
by the judge or referee before whom the case is tried. An
offer under this rule shall not be made known to 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, such as Cahan, 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