25 East 83 Corp. v. 83rd Street Associates

213 A.D.2d 269, 624 N.Y.S.2d 125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered December 3, 1993, which denied plaintiff’s application for attorney’s fees and denied defendant’s request for attorney’s fees and sanctions, unanimously modified, on the law, the facts and in the exercise of discretion, to find the defendant the prevailing party, and remanded for a hearing on defendant’s attorney’s fees, without costs.

It is settled that only a prevailing party is ordinarily entitled to attorney’s fees and that to be considered a prevailing party, there must be success with respect to the central relief sought (Nestor v McDowell, 81 NY2d 410, 415-416). Applying that standard, the Supreme Court properly concluded that plaintiff was not the prevailing party since all of its substantive claims, including the first cause of action for unpaid maintenance, were dismissed. In fact, by successfully defending against plaintiff’s lawsuit, defendant must be regarded as the prevailing party. We therefore remand for a hearing to determine the appropriate award of defendant’s counsel fees, without costs. Concur—Sullivan, J. P., Rosenberger, Nardelli and Williams, JJ.