Vicchiullo v. Soudant

Appellate Division of the Supreme Court of New York

Vicchiullo v. Soudant

88 A.D.2d 918, 450 N.Y.S.2d 578, 1982 N.Y. App. Div. LEXIS 17252

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

DecidedJune 1, 1982

StatusPublished

This text of 88 A.D.2d 918 (Vicchiullo v. Soudant) 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

Vicchiullo v. Soudant, 88 A.D.2d 918, 450 N.Y.S.2d 578, 1982 N.Y. App. Div. LEXIS 17252 (N.Y. Ct. App. 1982).

Pincite

Opinion

— In a proceeding brought pursuant to CPLR article 78 and converted to an action for a declaratory judgment, the appeal is from as much of a judgment of the Supreme Court, Orange County (O’Gorman, J.), dated March 12, 1981, as awarded petitioners counsel fees in the amount of $1,950. Judgment reversed insofar as appealed from, on the law, with $50 costs and disbursements, and application for legal fees is denied. In Cahn v Town of Huntington (29 NY2d 451, 455) “[t]he Court of Appeals directed recovery of legal fees to the attorney because the planning board possessed ‘implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its * * * official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from acting’ * * * There is, of course, no issue here of the extent of the powers or duties of a public officer or board” (Leo v Barnett, 48 AD2d 463, 465-466). Upon passage by the appellants (the members of the Town Board of the Town of Greenville) of the resolution abolishing the town planning board, the board ceased to exist. Thus, where a proceeding to review that resolution was commenced by petitioners, who are four members of the dissolved board, such proceeding was brought by petitioners as individuals and not in any official capacity. Therefore, the trial court’s award of counsel fees based upon the Cahn rationale was improper. As there is no other basis upon which the award could be based, the judgment must be reversed insofar as appealed from. Gibbons, J. P., Thompson, Rubin and Boyers, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— In a proceeding brought pursuant to CPLR article 78 and converted to an action for a declaratory judgment, the appeal is from as much of a judgment of the Supreme Court, Orange County (O’Gorman, J.), dated March 12, 1981, as awarded petitioners counsel fees in the amount of $1,950. Judgment reversed insofar as appealed from, on the law, with $50 costs and disbursements, and application for legal fees is denied. In Cahn v Town of Huntington (29 NY2d 451, 455) “[t]he Court of Appeals directed recovery of legal fees to the attorney because the planning board possessed ‘implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its * * * official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from acting’ * * * There is, of course, no issue here of the extent of the powers or duties of a public officer or board” (Leo v Barnett, 48 AD2d 463, 465-466). Upon passage by the appellants (the members of the Town Board of the Town of Greenville) of the resolution abolishing the town planning board, the board ceased to exist. Thus, where a proceeding to review that resolution was commenced by petitioners, who are four members of the dissolved board, such proceeding was brought by petitioners as individuals and not in any official capacity. Therefore, the trial court’s award of counsel fees based upon the Cahn rationale was improper. As there is no other basis upon which the award could be based, the judgment must be reversed insofar as appealed from. Gibbons, J. P., Thompson, Rubin and Boyers, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

88 A.D.2d 918, 450 N.Y.S.2d 578, 1982 N.Y. App. Div. LEXIS 17252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicchiullo-v-soudant-nyappdiv-1982.

Opinion

Related

Cite This Page — Counsel Stack