Dorfman v. American Education Services

Appellate Division of the Supreme Court of New York

Dorfman v. American Education Services

133 A.D.3d 481, 18 N.Y.S.3d 868

Appellate Division of the Supreme Court of the State of New York·Decided November 12, 2015·No. 16149 600929/04·Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 13, 2014, which, among other things, denied plaintiff’s motion to reject the Referee’s report, and granted defendant American Student Assistance’s (ASA) cross motion to confirm the report, unanimously affirmed, without costs.

Plaintiff’s argument on appeal, challenging the award of attorneys’ fees to ASA based on the provisions of promissory notes admittedly signed by plaintiff, is improper, as this Court previously affirmed the award (see 104 AD3d 474 [1st Dept 2013]). The sole issue before the Referee was the appropriate amount of such fees, which amount plaintiff does not challenge on appeal.

In any event, even though ASA did not assert a counterclaim, under the terms of the promissory notes, ASA was entitled to attorneys’ fees incurred in defending this action, as it was clearly enforcing the terms of the notes (see Cumberland Farms, Inc. v Lexico Enters., Inc., 2012 WL 526716, *4, 2012 US Dist LEXIS 19890, *10 [ED NY, Feb. 16, 2012, No. 10-CV-4658 (ADS) (AKT)]).

*482 We have considered plaintiff’s remaining contentions and find them unavailing. Concur — Tom, J.P., Saxe, Richter and Gische, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 13, 2014, which, among other things, denied plaintiff’s motion to reject the Referee’s report, and granted defendant American Student Assistance’s (ASA) cross motion to confirm the report, unanimously affirmed, without costs.

Plaintiff’s argument on appeal, challenging the award of attorneys’ fees to ASA based on the provisions of promissory notes admittedly signed by plaintiff, is improper, as this Court previously affirmed the award (see 104 AD3d 474 [1st Dept 2013]). The sole issue before the Referee was the appropriate amount of such fees, which amount plaintiff does not challenge on appeal.

In any event, even though ASA did not assert a counterclaim, under the terms of the promissory notes, ASA was entitled to attorneys’ fees incurred in defending this action, as it was clearly enforcing the terms of the notes (see Cumberland Farms, Inc. v Lexico Enters., Inc., 2012 WL 526716, *4, 2012 US Dist LEXIS 19890, *10 [ED NY, Feb. 16, 2012, No. 10-CV-4658 (ADS) (AKT)]).

*482 We have considered plaintiff’s remaining contentions and find them unavailing. Concur — Tom, J.P., Saxe, Richter and Gische, JJ.

Dorfman v. American Education Services, 133 A.D.3d 481, 18 N.Y.S.3d 868 (N.Y. Ct. App. 2015).

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