CLELLAND v. LETTRO (2005)

Plaintiffs commenced this action to recover damages for the alleged breach of a contract under which defendant was to build plaintiffs a house.   Defendant counterclaimed for damages for plaintiffs' alleged failure to make payments called for by that contract.   Defendant appeals from a judgment entered upon an order granting the motion of plaintiffs for summary judgment on their complaint, thereby awarding them $7,000 on their first cause of action, $718.20 on their second cause of action, and $9,090 on their third cause of action, plus $1,800 in attorney's fees.

 We conclude that Supreme Court erred in granting plaintiffs' motion for summary judgment on each of the three causes of action.  “There are triable questions of fact concerning the terms of the agreement between the parties” (Buffalo Newspress v. Coleman Communications Corp., 8 A.D.3d 969, 969, 778 N.Y.S.2d 612;  see Dec v. Auburn Enlarged School Dist., 249 A.D.2d 907, 909, 672 N.Y.S.2d 591).   Further, there are triable questions of fact concerning which party, plaintiffs or defendant, breached the contract (see Stalis v. Sugar Cr. Stores, 295 A.D.2d 939, 942, 744 N.Y.S.2d 586).   In addition, we conclude that the court erred in granting plaintiffs' request for attorney's fees.   A prevailing party is not entitled to have his attorney's fees paid by the loser unless such an award is authorized by agreement between the parties, statute, or court rule (see Chapel v. Mitchell, 84 N.Y.2d 345, 349, 618 N.Y.S.2d 626, 642 N.E.2d 1082;  Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.

MEMORANDUM: