Todem Homes, Inc. v. Freidus

55 A.D.2d 640, 390 N.Y.S.2d 9, 1976 N.Y. App. Div. LEXIS 15388

Opinion

In an action, inter alia, for a declaratory judgment, defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County, dated January 6, 1976, as limited their claims for reimbursement for taxes, and the interest thereon, and for attorneys’ fees. Order modified, on the law and the facts, by deleting from subdivision I of the fifth decretal paragraph thereof paragraphs D and E and substituting therefor a provision requiring plaintiff to pay the taxes, and the interest thereon, as of the date of closing. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and action remanded to Special Term to determine the amount of the payment required to be made by plaintiff and for entry of an appropriate amended order. On the record presented, we find that defendants did not act unreasonably in withholding the consents required by the planning board. Accordingly, defendants are entitled to reimbursement for taxes, and the interest thereon, as of the date of closing. As to the agreement between the parties providing for the payment of defendants’ attorneys’ fees, we hold that said agreement did not contemplate reimbursement to defendants for attorneys’ fees incurred in litigation with plaintiff. It provided only for payment of attorneys’ fees incurred in reviewing consents required by the planning board. Such fees were awarded by the court at Special Term. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Hawkins, JJ., concur. [84 Misc 2d 1023.]