DAVIDOFF v. HERSHFIELD (2026)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated June 5, 2025.  The order granted the plaintiff's cross-motion for summary judgment on the issue of liability and denied, as academic, the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's cross-motion for summary judgment on the issue of liability is denied, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.

As is relevant to the instant appeal, in October 2018, the defendants, Bruce Hershfield and Vicki Hershfield (hereinafter together the Hershfields), commenced an action against the plaintiff, Jonathan Davidoff, among others, for declaratory relief and to recover on a promissory note (hereinafter the note).  Davidoff moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and for an award of attorneys' fees.  In an order dated May 24, 2019, the Supreme Court, among other things, granted those branches of Davidoff's motion.  After a hearing, in an order dated April 30, 2020, the court awarded attorneys' fees to Davidoff in the sum of $20,207.86.  The Hershfields appealed from so much of the April 30, 2020 order as granted that branch of Davidoff's motion which was for an award of attorneys' fees and awarded attorneys' fees in the sum of $20,207.86 (see Hershfield v. Davidoff, 233 AD3d 923, 924–925).  This Court affirmed the order insofar as appealed from (see id.).

Thereafter, Davidoff commenced the instant action against the Hershfields, alleging that under the terms of the note, he was entitled to recover attorneys' fees and costs in connection with the prior appeal and in bringing this action.  The complaint attached, inter alia, copies of this Court's decision and order on the prior appeal and the note.  On March 28, 2025, the Hershfields moved pursuant to CPLR 3211(a) to dismiss the complaint.  On April 9, 2025, Davidoff opposed the Hershfields' motion and cross-moved for summary judgment on the issue of liability.

In an order dated June 5, 2025, the Supreme Court granted Davidoff's cross-motion for summary judgment on the issue of liability and denied, as academic, the Hershfields' motion pursuant to CPLR 3211(a) to dismiss the complaint.  The court determined that Davidoff was entitled to recover his attorneys' fees in connection with the prior appeal and the instant action under the clear terms of the note.  The Hershfields appeal.

The Supreme Court should have denied Davidoff's cross-motion for summary judgment on the issue of liability and should have granted the Hershfields' motion pursuant to CPLR 3211(a) to dismiss the complaint.  “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance.  If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” (Wagschal v. Ecconergy, 241 AD3d 597, 599 [internal quotation marks omitted];  see Palombo Group v Poughkeepsie City Sch. Dist., 125 AD3d 620, 621).  “[A]n award of attorneys' fees for the costs incurred in prosecuting a claim for an award of attorneys' fees, so called ‘fees on fees,’ must be based upon a specific contractual provision or statute” (Matter of Lillian G. [Steven G.—Gary G.], 208 AD3d 871, 875;  see IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 AD3d 641, 643).  “Consequently, where a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 AD3d at 643 [internal quotation marks omitted];  see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491).

Here, Davidoff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability for breach of contract.  The note did not contain clear language expressly providing for the prevailing party to recover fees on fees or any reference to fees incurred to recover attorneys' fees (see Hawthorne Funding, LLC v. Karish Kapital, LLC, 236 AD3d 998, 1001;  214 Wall St. Assoc., LLC v Medical Arts–Huntington Realty, 99 AD3d 988, 990).  “Given the absence of unmistakably clear intent regarding the recovery of fees on fees, a right to recover those fees should not be implied” (IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 AD3d at 643;  see 546–552 W. 146th St. LLC v. Arfa, 99 AD3d 117, 121).  Accordingly, the Supreme Court should have denied Davidoff's cross-motion for summary judgment on the issue of liability.  Moreover, for the same reasons, the court should have granted the Hershfields' motion pursuant to CPLR 3211(a) to dismiss the complaint.

Davidoff's remaining contention is improperly raised for the first time on appeal.

CONNOLLY, J.P., CHRISTOPHER, WAN and QUIRK, JJ., concur.