| Pickett v 992 Gates Ave. Corp. |
| 2014 NY Slip Op 00977 [114 AD3d 740] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Norman Pickett et al., Appellants, v 992 GatesAvenue Corporation et al., Respondents. |
—[*1] Mark H. Stofsky, Brooklyn, N.Y., for respondents.
In an action to foreclose a mortgage, the plaintiffs appeal from an amended judgmentof the Supreme Court, Kings County (Silber, J.), entered April 10, 2012, which, uponremittitur from this Court by decision and order dated January 11, 2011 (see Pickett v Gibbs, 80 AD3d592 [2011]), awarded them attorneys' fees in the sum of only $17,839.71.
Ordered that the amended judgment is affirmed, with costs.
"Under the general rule, attorney's fees are incidents of litigation and a prevailingparty may not collect them from the loser unless an award is authorized by agreementbetween the parties, statute or court rule" (Hooper Assoc. v AGS Computers, 74NY2d 487, 491 [1989]; seeFlemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375,379 [2010]; Baker v Health Mgt. Sys., 98 NY2d 80, 88 [2002]; 214 Wall St. Assoc., LLC vMedical Arts-Huntington Realty, 99 AD3d 988, 990 [2012]; Spodek v Neiss, 86 AD3d561, 561 [2011]). "New York public policy disfavors any award of attorneys' fees tothe prevailing party in a litigation" (Horwitz v 1025 Fifth Ave., Inc., 34 AD3d 248, 249[2006]). Therefore, "a contractual provision assuming an obligation to indemnify a partyfor attorneys' . . . fees 'must be strictly construed to avoid reading into it aduty which the parties did not intend to be assumed' " (Spodek v Neiss, 86 AD3dat 561, quoting Hooper Assoc. v AGS Computers, 74 NY2d at 491; see 214Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d at 990;Horwitz v 1025 Fifth Ave., Inc., 34 AD3d at 249; see also Baker v HealthMgt. Sys., 98 NY2d at 88).
Here, paragraph 3 of the rider to the subject mortgage provided that the mortgageewould be entitled to recover attorneys' fees in the event of a default and thecommencement of an action to foreclose the mortgage. The rider provided that suchattorneys' fees would be "the greater of 2% of the outstanding principal balance on saidMortgage . . . or $2,500. In their complaint, the plaintiffs sought to recoverthe balance of the mortgage, which they alleged to be $714,513.55. Thus, pursuant to theterms of the mortgage, the Supreme Court properly awarded attorneys' fees in the sum of$17,839.71 ($14,290.26 in attorneys' fees plus expenses and interest), which represented2% of the outstanding principal balance of the mortgage as alleged by the plaintiffs in[*2]the complaint (see Preferred Group of Manhattan, Inc. v Fabius Maximus, Inc.,51 AD3d 889, 890 [2008]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Austin, Sgroiand Miller, JJ., concur.