| Siamos v 36-02 35th Ave. Dev., LLC |
| 2008 NY Slip Op 06978 [54 AD3d 842] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Constantinos Siamos et al., Appellants, v 36-02 35thAvenue Development, LLC, Respondent. |
—[*1] Emanuel R. Gold, Forest Hills, N.Y. (Tammy M. Faige of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiffs are not in violation of theterms of a lease, the plaintiffs appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Kitzes, J.), dated December 20, 2007, as, upon reargument,granted that branch of the defendant's motion which was for an award of an attorney's fee, whichoriginally had been denied in an order of the same court dated November 1, 2007.
Ordered that the order dated December 20, 2007 is reversed insofar as appealed from, on thelaw, with costs, and upon reargument, so much of the order dated November 1, 2007 as deniedthat branch of the defendant's motion which was for an award of an attorney's fee is adhered to.
Pursuant to a lease dated July 7, 2005 the plaintiffs leased the subject premises from thedefendant to operate a restaurant therein. In 2007 the defendant served notices to cure upon theplaintiffs alleging breaches of the lease, prompting the plaintiffs' commencement of this actionand successful application for a Yellowstone injunction (see First Natl. Stores vYellowstone Shopping Ctr., 21 NY2d 630 [1968]). Upon the defendant's motion, inter alia,for an award of an attorney's fee, the Supreme Court initially determined, among other things,that no attorney's fee could be awarded, but, in the order appealed from, upon grantingreargument, ruled that the defendant was entitled to such a fee while the matter was still subjudice. We reverse the order insofar as appealed from.[*2]
Attorneys' fees and disbursements are incidents oflitigation which the prevailing party may not collect from the loser unless such an award isauthorized by agreement between the parties, by statute, or by court rule (see U.S. Underwriters Ins. Co. v City ClubHotel, LLC, 3 NY3d 592, 597-598 [2004]; Hooper Assoc. v AGS Computers,74 NY2d 487, 491 [1989]; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22[1979]; RAD Ventures Corp. v Artukmac, 31 AD3d 412, 414 [2006]; Levine v Infidelity, Inc., 2 AD3d691, 692 [2003]). Here, although the lease provides for the award of an attorney's fee, theaward was premature, as the prevailing party in this ongoing action has yet to be determined(see Matter of Duell v Condon, 84 NY2d 773, 780 [1995]; Miller Realty Assoc. v Amendola, 51AD3d 987 [2008]).
The plaintiffs' remaining contention is without merit. Fisher, J.P., Covello, Angiolillo andBalkin, JJ., concur.