Sirota v. Langtry

Appellate Division of the Supreme Court of New York

Sirota v. Langtry

227 A.D.2d 955, 643 N.Y.S.2d 851, 1996 N.Y. App. Div. LEXIS 6883

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

DecidedMay 31, 1996

StatusPublished

This text of 227 A.D.2d 955 (Sirota v. Langtry) 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.

Bluebook

Sirota v. Langtry, 227 A.D.2d 955, 643 N.Y.S.2d 851, 1996 N.Y. App. Div. LEXIS 6883 (N.Y. Ct. App. 1996).

Pincite

Opinion

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Plaintiffs contend that Supreme Court erred in awarding attorney’s fees to defendants for the defense of the fraud causes of action. We agree. The second mortgage entered into between plaintiffs, as mortgagors, and Wendell W. Mix and defendant Robert D. Langtry, as second mortgagees, provided for the second mortgagees to recover attorney’s fees necessary "to collect the debt covered by this mortgage or to protect or foreclose this mortgage”. In their previously dismissed causes of action (see, Sirota v Langtry, 204 AD2d 1009, Iv dismissed 84 NY2d 977), plaintiffs sought monetary damages for defendants’ alleged fraud and misrepresentations prior to plaintiffs’ purchase of a nine-unit commercial rental property. Plaintiffs did not seek to void, reform or repudiate the purchase contract or the bond and second mortgage arising from that purchase contract; they did not attack the continued validity of the second mortgage. Under those circumstances, the legal fees for the defense of the fraud causes of action were not expended by defendants to "protect or foreclose this mortgage” and, therefore, are not recoverable from plaintiffs (see, GIT Indus, v Rose, 94 AD2d 714, affd 62 NY2d 659; cf., Chelsea/ 22 Assocs. v Fleissner, 150 AD2d 212).

[956]*956We therefore modify the order by vacating the last ordering paragraph and remit the matter to Supreme Court to recompute the attorney’s fees and grant judgment accordingly. We have reviewed plaintiffs’ remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J. — Attorney’s Fees.) Present — Green, J. P., Pine, Lawton, Balio and Boehm, JJ.

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Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Plaintiffs contend that Supreme Court erred in awarding attorney’s fees to defendants for the defense of the fraud causes of action. We agree. The second mortgage entered into between plaintiffs, as mortgagors, and Wendell W. Mix and defendant Robert D. Langtry, as second mortgagees, provided for the second mortgagees to recover attorney’s fees necessary "to collect the debt covered by this mortgage or to protect or foreclose this mortgage”. In their previously dismissed causes of action (see, Sirota v Langtry, 204 AD2d 1009, Iv dismissed 84 NY2d 977), plaintiffs sought monetary damages for defendants’ alleged fraud and misrepresentations prior to plaintiffs’ purchase of a nine-unit commercial rental property. Plaintiffs did not seek to void, reform or repudiate the purchase contract or the bond and second mortgage arising from that purchase contract; they did not attack the continued validity of the second mortgage. Under those circumstances, the legal fees for the defense of the fraud causes of action were not expended by defendants to "protect or foreclose this mortgage” and, therefore, are not recoverable from plaintiffs (see, GIT Indus, v Rose, 94 AD2d 714, affd 62 NY2d 659; cf., Chelsea/ 22 Assocs. v Fleissner, 150 AD2d 212).

[956]*956We therefore modify the order by vacating the last ordering paragraph and remit the matter to Supreme Court to recompute the attorney’s fees and grant judgment accordingly. We have reviewed plaintiffs’ remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J. — Attorney’s Fees.) Present — Green, J. P., Pine, Lawton, Balio and Boehm, JJ.

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Bluebook (online)

227 A.D.2d 955, 643 N.Y.S.2d 851, 1996 N.Y. App. Div. LEXIS 6883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sirota-v-langtry-nyappdiv-1996.

Opinion

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