AmericaConsultants v. Cedar Income Fund Partnership L.P.

31 A.D.3d 306, 820 N.Y.S.2d 514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 2006
• Status: Published

Opinion

14] Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered March 4, 2005, after a nonjury trial, awarding plaintiff the principal sum of $329,800 on its first cause of action, and judgment, same court and Justice, entered June 24, 2005, awarding plaintiff the principal sum of $83,881.69 in attorneys’ fees, unanimously affirmed, without costs.

The conclusion that there was a fee agreement breached by defendants is supported by the evidence. To the extent that the modified contract transmitted to plaintiff by defendants’ principal represented a counteroffer, the parties’ conduct evidences acceptance (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399-400 [1977]; Federal Ins. Co. v Americas Ins. Co., 258 AD2d 39, 44 [1999]; cf. Lorbrook Corp. v G & T Indus., 162 AD2d 69, 74-75 [1990]), and the contract did not require procurement of a funding party who had not previously dealt with defendants. The evidence did not support a faithless servant defense (cf. Bon Temps Agency v Greenfield, 184 AD2d 280, 281 [1992], lv dismissed 81 NY2d 759 [1992]).

The court correctly construed the parties’ indemnification agreement as requiring defendants to reimburse plaintiff for legal fees in connection with enforcement of the contract (see Breed, Abbott & Morgan v Hulko, 74 NY2d 686 [1989]; Scheer v Kahn, 221 AD2d 515, 517-518 [1995]). We have considered defendants’ remaining arguments and find them without merit. Concur—Andrias, J.P., Sullivan, Williams, Sweeny and McGuire, JJ.