| Pickett v Gibbs |
| 2011 NY Slip Op 00208 [80 AD3d 592] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Norman Pickett et al., Respondents, v Romles Gibbs et al.,Appellants. |
—[*1] Abraham Borenstein & Associates, P.C., New York, N.Y. (Alec R. Borenstein of counsel), forrespondents.
In an action to foreclose a mortgage, the defendants appeal, as limited by their brief, from so muchof a judgment of the Supreme Court, Kings County (Balter, J.), dated March 9, 2009, as, upon anorder of the same court dated July 16, 2007, inter alia, granting that branch of the plaintiffs' motionwhich was to confirm, and denying that branch of their cross motion which was to reject, so much of areport of a judicial hearing officer dated December 23, 2005, made after a hearing, as recommendedthat the plaintiffs be awarded an attorney's fee in the sum of $364,414.58, is in favor of the plaintiffs andagainst them awarding the plaintiffs an attorney's fee in the sum of $364,414.58.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, that branchof the plaintiffs' motion which was to confirm so much of the report of the judicial hearing officer asrecommended that the plaintiffs be awarded an attorney's fee in the sum of $364,414.58 is denied, thatbranch of the defendants' cross motion which was to reject so much of the report as recommended thatthe plaintiffs be awarded an attorney's fee in that sum is granted, the order is modified accordingly, andthe matter is remitted to the Supreme Court, Kings County, for a new determination in accordanceherewith, and the entry of an appropriate amended judgment thereafter.
This appeal involves the award to the plaintiffs of an attorney's fee in the sum of $364,414.58.There is no dispute that the plaintiffs' attorneys are entitled to an award of a reasonable attorney's feefor their work in the underlying mortgage foreclosure dispute. The sole issue before this Court iswhether all of the hours claimed to have been expended by the plaintiffs' attorneys were related to theforeclosure action. We find that they were not. "Legal fee clauses must be strictly construed" (Duane Reade v Highpoint Assoc. IX, LLC,36 AD3d 496, 497 [2007]). In this case, according to the terms of the mortgage, the plaintiffswere entitled to reimbursement for attorneys' fees and expenses incurred "in connection" with theforeclosure action. As conceded by the plaintiffs, according to the terms of the mortgage, the plaintiffs'attorneys are entitled to an award of an attorney's fee only for the preparation, prosecution, andconclusion of the foreclosure action. However, despite this acknowledgment, the plaintiffs' attorneysimproperly included, in their billing records, items which were unrelated to the foreclosure action. Thus,the matter must be remitted to the Supreme Court, Kings County, for a determination of the propernumber of hours actually expended by the plaintiffs' attorneys in connection with the foreclosure actionand the expenses incurred solely with respect to the foreclosure action, and for a recalculation of the[*2]appropriate attorney's fee and expenses to be awarded to theplaintiffs' attorneys.
Furthermore, upon recalculation of the attorney's fee and expenses owed to the plaintiffs' attorneys,the Supreme Court shall not award prejudgment interest on the award of the attorney's fee andexpenses (see CPLR 5001; SolowMgt. Corp. v Tanger, 19 AD3d 225 [2005]). Dillon, J.P., Florio, Roman and Sgroi, JJ.,concur.