| Neighborhood Hous. Servs. of N.Y. City, Inc. v Hawkins |
| 2012 NY Slip Op 05400 [97 AD3d 554] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Neighborhood Housing Services of New York City, Inc.,Appellant, v Floyd Hawkins, Respondent, et al., Defendants. |
—[*1] David J. Bryan and Andrew Malozemoff, Brooklyn, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Silber, J.), dated April 7, 2011, which denied those branches of its motionwhich were for summary judgment on the complaint and dismissing the counterclaim of thedefendant Floyd Hawkins, which sought an award of an attorney's fee.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for summary judgment dismissing the counterclaim ofthe defendant Floyd Hawkins, which sought an award of an attorney's fee, and substitutingtherefor a provision granting that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
The plaintiff established its prima facie entitlement to judgment as a matter of law bypresenting the subject mortgage, the unpaid note, and evidence of the default of the defendantFloyd Hawkins (see NeighborhoodHous. Servs. of N.Y. City, Inc. v Meltzer, 67 AD3d 872, 873 [2009]; Countrywide Home Loans, Inc. vDelphonse, 64 AD3d 624, 625-626 [2009]; Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832, 833[2009]). In opposition, Hawkins raised triable issues of fact regarding his defenses including,inter alia, the defense based on his claim that the loan proceeds disbursed to the contractor werenever authorized (see Bankers Trust Co.of Cal., N.A. v Sciarpelletti, 28 AD3d 408, 411 [2006]). Accordingly, the SupremeCourt properly denied that branch of the plaintiff's motion which was for summary judgment onthe complaint.
However, the Supreme Court should have granted that branch of the plaintiff's motion whichwas for summary judgment dismissing Hawkins's counterclaim, which sought an award of anattorney's fee. Since there is no statute in New York authorizing the recovery of an attorney's feein a mortgage foreclosure action, such a fee may only be recovered if it is contractuallyauthorized (see Levine v Infidelity,Inc., 2 AD3d 691, 692 [2003]). Here, the plaintiff established its prima facie entitlementto judgment as a matter of law dismissing the counterclaim by demonstrating that there is nocontractual provision obligating it to pay Hawkins an attorney's fee. Hawkins failed to raise [*2]a triable issue of fact in opposition. Rivera, J.P., Eng, Lott andCohen, JJ., concur.