| Schwartz v Rosenberg |
| 2009 NY Slip Op 08208 [67 AD3d 770] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Faith Schwartz, Appellant-Respondent, v Aron Rosenberget al., Respondents-Appellants. |
—[*1] Stein Farkas & Schwartz, LLP, New York, N.Y. (Esther E. Schwartz and Jeffrey M.Schwartz of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals fromso much of an order of the Supreme Court, Nassau County (Marber, J.), dated March 13, 2009,as denied that branch of her motion which was for summary judgment on her second cause ofaction to recover an attorney's fee, and the defendants cross-appeal from so much of the sameorder as granted that branch of the plaintiff's motion which was for summary judgment on herfirst cause of action and directed the plaintiff's counsel to release to the plaintiff the balance ofthe subject escrow deposit in the sum of $25,000.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
"When a contract does not specify time of performance, the law implies a reasonable time"(Savasta v 470 Newport Assoc., 82 NY2d 763, 765 [1993]; see Parker v Booker, 33 AD3d602, 603 [2006]; Manzi Homes,Inc. v Mooney, 29 AD3d 748, 749 [2006]; Teramo & Co. v O'Brien-Sheipe FuneralHome, 283 AD2d 635, 636 [2001]). What constitutes a reasonable time for performancedepends upon the circumstances of the particular case (see Savasta v 470 NewportAssoc., 82 NY2d at 765; Parker v Booker, 33 AD3d at 603; Teramo & Co. vO'Brien-Sheipe Funeral Home, 283 AD2d at 636). Contrary to the defendants' contentionson their cross appeal, under the circumstances of this case, the Supreme Court [*2]correctly determined that they failed to comply with theirobligations under the postclosing agreement dated June 27, 2006, within a reasonable time(see Savasta v 470 Newport Assoc., 82 NY2d at 765; Parker v Booker, 33 AD3dat 603). In response to the plaintiff establishing her prima facie entitlement to judgment as amatter of law, the defendants failed to raise a triable issue of fact. Accordingly, the SupremeCourt properly granted that branch of the plaintiff's motion which was for summary judgment onher first cause of action.
"Under the general rule, attorney's fees are incidents of litigation and a prevailing party maynot collect them from the loser unless an award is authorized by agreement between the parties,statute or court rule" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989];see Spratt v Chiulli, 212 AD2d 589, 590-591 [1995]). Here, the contract of sale pursuantto which the plaintiff sold the subject premises to the defendants contained a provision allowingfor an award of an attorney's fee to the prevailing party in an action between the parties "inenforcing the terms of this agreement." Further, the contract of sale expressly provided that theparagraph providing for an award of attorney's fees "shall survive the closing." However,contrary to the plaintiff's contention, it is clear that she seeks to enforce her rights and obtain aremedy pursuant to the postclosing agreement dated June 27, 2006, not the contract of sale. Thepostclosing agreement contains no provision for an award of an attorney's fee, and therefore suchan award is not warranted (see Hooper Assoc. v AGS Computers, 74 NY2d at 491;Matter of Meehan v Nassau Community Coll., 242 AD2d 155, 160 [1998]).Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which wasfor summary judgment on her second cause of action.
The defendants' remaining contention is not properly before this Court. Dillon, J.P.,Dickerson, Belen and Roman, JJ., concur.