Tucker v. Toia
| Decision Date | 13 July 1978 |
| Parties | Angela TUCKER, Gloria Felder and Christopher Stewart each individually and on behalf of all others similarly situated, et al., Respondents, v. Philip L. TOIA, Individually and as Commissioner of the New York State Department of Social Services, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Albany by William Goldman, Auburn, for appellant.
Monroe County Legal Assistance Corp., Rochester by E. Wade Eaton, Rochester, for respondents.
Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and SCHNEPP, JJ.
We reverse the order and judgment of Special Term awarding plaintiffs an extra allowance of $3,000.00 for attorney's fees under CPLR 8303, subd. a, par. 2. The general rule with respect to attorneys' fees is that such fees are normally a nonrecoverable item (Piaget Watch Corp. v. Audemars Piguet & Co., Inc. 35 A.D.2d 920, 316 N.Y.S.2d 104) and that in the absence of contractual or statutory liability, attorneys' fees and expenses incurred in litigating a claim, aside from the usual court costs, are not recoverable as an item of damages (City of Buffalo v. Clement Co., 28 N.Y.2d 241, 262-263, 321 N.Y.S.2d 345, 363-364, 269 N.E.2d 895, 908-909; Klein v. Sharp,41 A.D.2d 926, 343 N.Y.S.2d 1014). Absent the existence of express authority for their recovery, as here, attorneys' fees should not be awarded under the guise of an additional allowance pursuant to CPLR 8303, subd. a, par. 2.
All concur, except CARDAMONE, J., who dissents and votes to affirm the order and judgment in the following Memorandum:
CPLR 8303, subd. a, par. 2 provides for a discretionary allowance "to any party to a difficult or extraordinary case, where a defense has been interposed" limited to "a sum not exceeding five percent of the sum recovered or claimed, or of the value of the subject matter involved, and not exceeding the sum of three thousand dollars". The Trial Court awarded respondents herein $3,000 as an allowance finding that this was a most difficult legal proceeding since it involved a new question of interpretation of the Constitution of the State of New York and that such a novel issue required an extraordinary and unusual amount of time and preparation. Respondents prevailed in their declaratory judgment action (see, Tucker v. Toia, 43 N.Y.2d 1, 400 N.Y.S.2d 728, 371 N.E.2d 449, affd. 89 Misc.2d 116, 390 N.Y.S.2d 794).
Where no damages are claimed or recovered, as is the case in this declaratory judgment action it is appropriate for the allowance to be based upon "the value of the subject matter involved" (CPLR 8303, subd. a, par. 2; Kremer v. New York Air...
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State v. Schenectady Chemicals, Inc.
... ... court will dismiss the demand for attorneys' fees since that relief is not available in the absence of a statute or contract authorizing same (Tucker v. Toia, 64 A.D.2d 826, 407 N.Y.S.2d 600, app. dsmd. 48 N.Y.2d 755) ... The objection that the complaint is improperly set forth as ... ...
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Greenfield v. Kanwit, 77 Civ. 1240 (WK).
... ... City of Buffalo v. J. W. Clement Co. (1971) 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895; Tucker v. Toia (4th Dep't 1978) 64 A.D.2d 826, 407 N.Y.S.2d 600 ... Plaintiff seeks to avoid the effects of this doctrine by arguing ... ...
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Plancher v. Gladstein
... ... Brownlee, 133 A.D.2d 221, 518 N.Y.S.2d 773; Rahabi v. Morrison, 81 A.D.2d 434, 440 N.Y.S.2d 941; Tucker v. Toia, 64 A.D.2d 826, 407 N.Y.S.2d 600). As no such authority exists ... ...
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Giblin v. Murphy
... ... an award of attorney's fees to plaintiff would be proper because of the contractual provision between plaintiff and Sinclair so providing (see Tucker v. Toia, 64 A.D.2d 826, 407 N.Y.S.2d 600, app. dsmd. 48 N.Y.2d 755). However, since plaintiff put in absolutely no proof with respect to the fee ... ...