Chiu v. Hoydal

Appellate Division of the Supreme Court of New York

Chiu v. Hoydal

248 A.D.2d 426, 668 N.Y.S.2d 948, 1998 N.Y. App. Div. LEXIS 2284

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1998

StatusPublished

Cited by1 cases

This text of 248 A.D.2d 426 (Chiu v. Hoydal) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Chiu v. Hoydal, 248 A.D.2d 426, 668 N.Y.S.2d 948, 1998 N.Y. App. Div. LEXIS 2284 (N.Y. Ct. App. 1998).

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Opinion

—In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from so much of a judgment of the Supreme Court, Richmond County (Cusick, J.), dated November 20, 1996, as awarded attorneys’ fees of only $8,500.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Although the note secured by the mortgage included a provision requiring the mortgagors to pay counsel fees of 15% of all sums due in the event that the note was subject to collection, the appellant is not entitled to such a fee as a matter of law as this provision was not included in the mortgage instrument itself (see, Vardy Holding Co. v Metric Resales, 131 AD2d 564; Lipton v Specter, 96 AD2d 549; see generally, 2 Bergman, New York Mortgage Foreclosures § 26.01). Rather, the court correctly determined that the appellant was entitled to an award of legal fees on a quantum meruit basis, reflecting the reasonable value of the legal services provided by his attorney (see, Chelsea 122 Assocs. v Fleissner, 150 AD2d 212; see, e.g., Bankers Fed. Sav. Bank v Off W. Broadway Developers, 224 AD2d 376). The court providently exercised its discretion in its award of counsel fees, which was rendered after a hearing before a Referee.

We have reviewed the appellant’s remaining contentions and find them to be without merit.

Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.

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—In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from so much of a judgment of the Supreme Court, Richmond County (Cusick, J.), dated November 20, 1996, as awarded attorneys’ fees of only $8,500.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Although the note secured by the mortgage included a provision requiring the mortgagors to pay counsel fees of 15% of all sums due in the event that the note was subject to collection, the appellant is not entitled to such a fee as a matter of law as this provision was not included in the mortgage instrument itself (see, Vardy Holding Co. v Metric Resales, 131 AD2d 564; Lipton v Specter, 96 AD2d 549; see generally, 2 Bergman, New York Mortgage Foreclosures § 26.01). Rather, the court correctly determined that the appellant was entitled to an award of legal fees on a quantum meruit basis, reflecting the reasonable value of the legal services provided by his attorney (see, Chelsea 122 Assocs. v Fleissner, 150 AD2d 212; see, e.g., Bankers Fed. Sav. Bank v Off W. Broadway Developers, 224 AD2d 376). The court providently exercised its discretion in its award of counsel fees, which was rendered after a hearing before a Referee.

We have reviewed the appellant’s remaining contentions and find them to be without merit.

Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.

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Bluebook (online)

248 A.D.2d 426, 668 N.Y.S.2d 948, 1998 N.Y. App. Div. LEXIS 2284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chiu-v-hoydal-nyappdiv-1998.

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