BGW DEVELOPMENT CORP v. MOUNT KISCO LODGE (1999)

In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from stated portions of an amended judgment of the Supreme Court, Westchester County (Colabella, J.), entered July 27, 1998, which, among other things, upon the denial of its application for an attorneys' fee, failed to award it an attorneys' fee.

ORDERED that the amended judgment is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the plaintiff's application for an attorneys' fee.   The attorneys' fee sought by the plaintiff does not fall within the relevant exception to the rule that the prevailing litigant ordinarily cannot collect an attorneys' fee from its unsuccessful opponents (see, Hunt v. Sharp, 85 N.Y.2d 883, 885, 626 N.Y.S.2d 57, 649 N.E.2d 1201).  The attorneys' fee was not incurred in an attempt to compel the defendant Mount Kisco Lodge No. 1552 of the Benevolent and Protective Order of Elks of the United States of America (hereinafter the Elks) to fulfill its contractual obligations.   Moreover, the attorneys' fee was not “directly occasioned and made necessary” by the breach of contract by the Elks (City of Elmira v. Larry Walter, Inc., 150 A.D.2d 129, 133, 546 N.Y.S.2d 183, affd. 76 N.Y.2d 912, 563 N.Y.S.2d 45, 564 N.E.2d 655;  compare, Aero Garage Corp. v. Hirschfeld, 185 A.D.2d 775, 776, 586 N.Y.S.2d 611;  Kinney v. Massachusetts Bonding & Ins. Co., 210 App.Div. 285, 293, 206 N.Y.S. 163;  see also, Check-Mate Inds. v. Say Assocs., 104 A.D.2d 392, 393, 478 N.Y.S.2d 924).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.