Stirling v. 107 Oakland Place, Inc.

Appellate Division of the Supreme Court of New York

Stirling v. 107 Oakland Place, Inc.

133 A.D.2d 523, 519 N.Y.S.2d 894, 1987 N.Y. App. Div. LEXIS 49998

Appellate Division of the Supreme Court of the State of New York·Decided September 30, 1987·Published·Cited by 1 cases

Opinion

Order unanimously affirmed with costs. Memorandum: The court properly dismissed the complaint pursuant to CPLR 3211 for failure to state a cause of action. With respect to the sixth cause of action asserting a violation of Real Property Law § 235-f, plaintiff has failed to allege damages. Although he does allege that he expended attorney’s fees in opposing the eviction notice and bringing this action, under the general rule, absent an express contractual allegation or specific statutory authority, such expenses are not recoverable as an item of damages (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22; Dunkel v McDonald, 272 App Div 267, 272, affd 298 NY 586; Clason v Nassau Ferry Co., 20 Misc 315, affd 27 App Div 621). (Appeal from order of Supreme Court, Erie County, Ricotta, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Order unanimously affirmed with costs. Memorandum: The court properly dismissed the complaint pursuant to CPLR 3211 for failure to state a cause of action. With respect to the sixth cause of action asserting a violation of Real Property Law § 235-f, plaintiff has failed to allege damages. Although he does allege that he expended attorney’s fees in opposing the eviction notice and bringing this action, under the general rule, absent an express contractual allegation or specific statutory authority, such expenses are not recoverable as an item of damages (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22; Dunkel v McDonald, 272 App Div 267, 272, affd 298 NY 586; Clason v Nassau Ferry Co., 20 Misc 315, affd 27 App Div 621). (Appeal from order of Supreme Court, Erie County, Ricotta, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

Stirling v. 107 Oakland Place, Inc., 133 A.D.2d 523, 519 N.Y.S.2d 894, 1987 N.Y. App. Div. LEXIS 49998 (N.Y. Ct. App. 1987).

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133 A.D.2d 523 (Stirling v. 107 Oakland Place, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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