Marzullo v. General Motors Corp.

6 A.D.3d 506, 774 N.Y.S.2d 423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 2004
• Status: Published

Opinion

In an action to recover damages pursuant to General Business Law § 198-a, the plaintiff appeals from so much of a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated May 7, 2003, as denied her an award of a statutory attorney’s fee.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for further proceedings in accordance herewith.

The record does not support a finding that the plaintiff abandoned or waived her request for an award of a statutory attorney’s fee (see General Business Law § 198-a; see generally Genovese v Gambino, 309 AD2d 832, 833 [2003]; Mondo v Ellstein, 302 AD2d 437, 438 [2003]; Bono v Cucinella, 298 AD2d 483, 484 [2002]). Therefore, the Supreme Court should not have denied her request for an award of a statutory attorney’s fee without permitting proof on that issue. Accordingly, we remit the matter to the Supreme Court, Dutchess County, to determine whether an award of a statutory attorney’s fee is warranted and, if so, the amount, and for the entry of an amended judgment if necessary. Ritter, J.P., S. Miller, H. Miller and Crane, JJ., concur.