KESSEL BRENT CORPORATION v. BENDERSON PROPERTY DEVELOPMENT INC

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KESSEL BRENT CORPORATION and Christopher C. Vescera, Plaintiffs-Appellants, v. BENDERSON PROPERTY DEVELOPMENT, INC., Defendant-Respondent.

Decided: December 30, 2009

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, GREEN, AND GORSKI, JJ. Richard E. Kaplan, Utica, for Plaintiffs-Appellants. Whiteman Osterman & Hanna LLP, Albany (John J. Henry of Counsel), for Defendant-Respondent.

Supreme Court properly granted defendant's motion seeking an award of attorneys' fees and costs incurred in the defense of plaintiffs' prior appeals in this action for breach of the parties' purchase and sale agreement (agreement). The agreement provided that, in an action to interpret or enforce its terms, “the prevailing party shall be entitled to be awarded its reasonable attorneys' fees through all appeals in addition to other costs and disbursements allowed by law, including those incurred on appeal.” Defendant was the prevailing party in the prior appeals and is thus entitled to recover its attorneys' fees and costs incurred in the defense thereof (see John T. Nothnagle, Inc. v. Chiarello, 66 A.D.3d 1524, 887 N.Y.S.2d 411). We reject plaintiffs' contention that defendant should have moved for such relief in this Court or in the Court of Appeals (see DiFilippo v. DiFilippo, 286 A.D.2d 869, 730 N.Y.S.2d 602). Plaintiffs' further contention that defendant was required to amend its answer in order to seek the instant relief is raised for the first time on this appeal and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed with costs.

MEMORANDUM: