Wu v. Kao

Appellate Division of the Supreme Court of New York

Wu v. Kao

194 A.D.2d 666, 599 N.Y.S.2d 999

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

DecidedJune 14, 1993

StatusPublished

Cited by3 cases

This text of 194 A.D.2d 666 (Wu v. Kao) 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

Wu v. Kao, 194 A.D.2d 666, 599 N.Y.S.2d 999 (N.Y. Ct. App. 1993).

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Opinion

—In an action to recover on a promissory note, brought by motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, the defendant appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated May 7, 1991, which, inter alia, denied his motion to vacate a prior judgment of the same court entered December 31, 1990.

Ordered that the order is modified, on the law, by deleting the second decretal paragraph thereof and substituting therefore a provision granting the defendant’s motion to vacate the judgment entered December 31, 1990, only to the extent that the provision awarding attorney’s fees is vacated; as so modified, the order is affirmed, with costs to the defendant.

The law is well settled that a civil litigant may not recover attorney’s fees in the absence of contractual or statutory authority (see, Matter of Green [Potter], 51 NY2d 627, 629-630; Plancher v Gladstein, 143 AD2d 740). As no such authority exists here, the award of attorney’s fees should have been vacated.

However, we reject the defendant’s remaining contentions that the judgment was otherwise procured by fraud and should have been vacated (see, CPLR 5015 [a] [3]). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.

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—In an action to recover on a promissory note, brought by motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, the defendant appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated May 7, 1991, which, inter alia, denied his motion to vacate a prior judgment of the same court entered December 31, 1990.

Ordered that the order is modified, on the law, by deleting the second decretal paragraph thereof and substituting therefore a provision granting the defendant’s motion to vacate the judgment entered December 31, 1990, only to the extent that the provision awarding attorney’s fees is vacated; as so modified, the order is affirmed, with costs to the defendant.

The law is well settled that a civil litigant may not recover attorney’s fees in the absence of contractual or statutory authority (see, Matter of Green [Potter], 51 NY2d 627, 629-630; Plancher v Gladstein, 143 AD2d 740). As no such authority exists here, the award of attorney’s fees should have been vacated.

However, we reject the defendant’s remaining contentions that the judgment was otherwise procured by fraud and should have been vacated (see, CPLR 5015 [a] [3]). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.

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Bluebook (online)

194 A.D.2d 666, 599 N.Y.S.2d 999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wu-v-kao-nyappdiv-1993.

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