| Griswold Special Care of N.Y., Inc. v Executive Nurses Home Care,Inc. |
| 2009 NY Slip Op 07799 [66 AD3d 962] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Griswold Special Care of New York, Inc.,Respondent, v Executive Nurses Home Care, Inc.,Appellant. |
—[*1] Meltzer, Lippe, Goldstein & Brettstone, LLP, Mineola, N.Y. (Loretta M. Gastwirth and RoniE. Glaser of counsel), for respondent.
In an action, inter alia, in effect, to recover an escrow deposit, the defendant appeals from (1)a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated April 9, 2008, which,upon so much of an order of the same court entered April 3, 2008, as granted that branch of theplaintiff's motion which was for summary judgment and directed that the plaintiff be awardedstatutory prejudgment interest, is in favor of the plaintiff and against it in the principal sum of$402,000, plus prejudgment interest in the sum of $26,266.80 and costs in the sum of $600, and(2) a money judgment of the same court entered June 13, 2008, which, upon so much of theorder entered April 3, 2008, as granted that branch of the plaintiff's motion which was for anaward of an attorney's fee and upon an order of the same court entered April 21, 2008, referringthe matter to a Court Attorney Referee to hear and determine all issues relating to an award of anattorney's fee, and after an inquest, is in favor of the plaintiff and against it for an attorney's feein the principal sum of $60,574.80.
Ordered that the judgment dated April 9, 2008, is modified, on the law, by deleting theprovision thereof awarding the plaintiff statutory prejudgment interest in the sum of $26,266.80;as so modified, the judgment dated April 9, 2008, is affirmed, without costs or disbursements,and the order entered April 3, 2008, is modified accordingly; and it is further,
Ordered that the judgment entered June 13, 2008, is reversed, on the law, without costs ordisbursements, that branch of the plaintiff's motion which was for an award of an attorney's fee isdenied, the order entered April 9, 2008, is modified accordingly, and the order entered April 21,2008, is vacated.
The plaintiff entered into a contract with the defendant to purchase certain assets of thedefendant's home health care agency. On or about May 16, 2006, the plaintiff deposited thepurchase price into escrow. However, on or about July 19, 2007, the plaintiff notified thedefendant of its intention to terminate the agreement. The plaintiff subsequently commenced thisaction, inter alia, to recover damages for breach of contract, in effect, to recover the escrowdeposit. The Supreme Court granted that branch of the plaintiff's motion which was for summaryjudgment, and awarded the plaintiff pre-judgment interest. After an inquest, the Supreme Courtalso granted that branch of the plaintiff's motion which was for an award of an attorney's fee.[*2]
The Supreme Court properly granted that branch of theplaintiff's motion which was for summary judgment. The contract provided that the plaintiff wasentitled to terminate the agreement if the necessary licenses and permits required for it to operatethe defendant's business were not issued within nine months of the date of the agreement. It isundisputed that these licenses were not obtained within that time. Accordingly, the plaintiffestablished its prima facie entitlement to summary judgment (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d at 324). The fact that the plaintiff may have continued its efforts to obtainthe required licenses and/or permits did not establish that it waived its right to terminate thecontract (see Golfo v Kycia Assoc.,Inc., 45 AD3d 531, 532-533 [2007]; BDG Oceanside, LLC v RAD Term. Corp., 14 AD3d 472, 474[2005]; Greenberg v Tekhomes, Inc., 209 AD2d 469, 471 [1994]).
Under the circumstances presented here, the Supreme Court improvidently exercised itsdiscretion in awarding statutory prejudgment interest to the plaintiff (see generallyCPLR 5001 [a]; Manufacturer's &Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583, 588-590 [2007]).
Finally, the Supreme Court improperly awarded an attorney's fee to the plaintiff under theagreement. The agreement provided that each party would indemnify the other party for costs,including an attorney's fee, resulting from its "material breach" of the agreement. However, theSupreme Court did not find that the defendant breached the agreement. Consequently, the awardof an attorney's fee was improper (seePetrovich v Obradovic, 40 AD3d 1063, 1065 [2007]; cf. Solow Mgt. Corp. v Arista Records,Inc., 41 AD3d 219 [2007]; see generally Hooper Assoc. v AGS Computers, 74NY2d 487 [1989]). Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur. [See 2008 NYSlip Op 31021(U).]