GAGE v. MONESCALCHI (2005)

Appeal from a judgment of the Supreme Court (Benza, J.), entered August 5, 2004 in Albany County, which, inter alia, granted defendant's motion to dismiss the complaint.

In two separate earlier proceedings pursuant to Election Law §§ 16-102, 16-106 and 16-112, plaintiffs were ultimately successful on appeal in challenging certain determinations made by defendant as the Democratic Commissioner of the Albany County Board of Elections (see Matter of Francis v. Palombo, 2 A.D.3d 1148, 1149, 768 N.Y.S.2d 667 [2003];  Matter of Gage v. Hammond, 309 A.D.2d 1061, 1062, 766 N.Y.S.2d 399 [2003] ).   Plaintiffs then commenced this action seeking damages based on allegations that defendant had acted in violation of the Election Law. A review of the record reveals, however, that the damages they seek consist solely of the filing fees, disbursements and counsel fees incurred in the earlier proceedings.   Accordingly, Supreme Court properly dismissed the complaint.

 While a claim in damages may be brought against election officers if they breach their ministerial duties (see Frank v. Eaton, 225 App.Div. 149, 231 N.Y.S. 477 [1928];  Schwartz v. Heffernan, 201 Misc. 101, 105 N.Y.S.2d 516 [1951], affd. 279 App.Div. 898, 111 N.Y.S.2d 94 [1952], affd. 304 N.Y. 474, 109 N.E.2d 68 [1952] ), the only damages that plaintiffs seek cannot be awarded here.   To the extent that they seek to recover the fees and disbursements incurred in the earlier special proceedings, we note that the extent of any award of costs and disbursements is governed by the CPLR, and bills of costs would be appropriate only in the earlier proceedings themselves (see CPLR arts. 81-84).   As for plaintiffs' claim for counsel fees, it is the well-settled rule in New York that such fees are considered incidents of litigation, rather than damages, and are not recoverable unless authorized by statute, court rule or the parties' written agreement (see Baker v. Health Mgt. Sys., 98 N.Y.2d 80, 88, 745 N.Y.S.2d 741, 772 N.E.2d 1099 [2002];   Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989];  Green Harbour Homeowners' Assn. v. G.H. Dev. & Constr., 307 A.D.2d 465, 468, 763 N.Y.S.2d 114 [2003], lv. dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204 [2003] ).   Here, plaintiffs cite no statute or other authority that explicitly provides for awards of counsel fees to successful litigants in proceedings brought pursuant to the Election Law. In light of this determination, we need not consider plaintiffs' remaining contentions.

ORDERED that the judgment is affirmed, with costs.

ROSE, J.

CARDONA, P.J., CREW III and MUGGLIN, JJ., concur.