RIO ENERGY INTERNATIONAL INC v. ARON COMPANY (1997)

Supreme Court, Appellate Division, First Department, New York.

RIO ENERGY INTERNATIONAL, INC., Plaintiff-Appellant, v. J. ARON & COMPANY, et al., Defendants-Respondents.

Decided: November 25, 1997

Before MILONAS, J.P., and ROSENBERGER, RUBIN, WILLIAMS and COLABELLA, JJ.

John J. Sullivan, for Plaintiff-Appellant. Alfred E. Yudes, Jr., for Defendants-Respondents.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 8, 1996, which dismissed so much of an action as sought to recover attorneys' fees, unanimously affirmed, with costs.

Plaintiff's claim for attorneys' fees was properly rejected on the ground that under the “Non-Performance” clause of the subject contract, recovery of attorneys' fees is limited to plaintiff's exercise of the remedy of liquidation and set-off, a remedy not exercised by plaintiffs, who instead opted to sue for breach of contract.

MEMORANDUM DECISION.

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