Luis Lopez & Son's, Inc. v Dannie's Auto Care

2009 NY Slip Op 02754 [61 AD3d 643]

April 7, 2009

Appellate Division, Second Department

As corrected through Wednesday, June 10, 2009

Luis Lopez & Son's, Inc., Appellant, v Dannie's Auto Careet al., Respondents.

—[*1]Law Offices of David J. Sutton, P.C., Garden City, N.Y., for appellant.

In an action for the return of down payments given pursuant to a contract for the sale of abusiness, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County(Spinola, J.), dated April 24, 2008, as, in effect, denied that branch of its motion which was foran award of an attorney's fee and litigation expenses.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the plaintiff's motion which was for an award of an attorney's fee and litigationexpenses is granted, and the matter is remitted to the Supreme Court, Nassau County, todetermine the amount of the attorney's fee and litigation expenses to be awarded to the plaintiff.

The Supreme Court erred in, in effect, denying that branch of the plaintiff's motion whichwas for an award of an attorney's fee and litigation expenses incurred in the prosecution of theinstant action for the return of down payments given pursuant to a contract for the sale of thedefendant's business. The subject agreement provided that "in any disputes brought to court, theprevailing party shall be entitled to recover legal fees and expenses." The plaintiff, whichprevailed in recovering the down payments, also was entitled to an award of an attorney's fee andlitigation expenses it incurred prosecuting this action (see Nestor v McDowell, 81 NY2d410, 415 [1993]; Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]; Village of Hempstead v Taliercio, 8AD3d 476 [2004]; Fatsis v 360 Clinton Ave. Tenants Corp., 272 AD2d 571 [2000]).Accordingly, the matter must be remitted to the Supreme Court, Nassau County, to determine theamount of the attorney's fee and litigation expenses to be awarded to the plaintiff for theprosecution of the instant action. Skelos, J.P., Santucci, Angiolillo, Dickerson and Chambers, JJ.,concur.