Vacation Village Homeowners' Ass'n Inc. v. Mordkofsky

• Decision Date: 29 October 1998
• Citation: 254 A.D.2d 650,679 N.Y.S.2d 435
• Parties: 1998 N.Y. Slip Op. 9281 VACATION VILLAGE HOMEOWNERS' ASSOCIATION INC., Appellant, v. Norman MORDKOFSKY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 435

679 N.Y.S.2d 435

1998 N.Y. Slip Op. 9281

VACATION VILLAGE HOMEOWNERS' ASSOCIATION INC., Appellant, v. Norman MORDKOFSKY et al., Respondents.

Supreme Court, Appellate Division Third Department.

Oct. 29, 1998.

Goldstein, Stoloff & Silver (Gary D. Silver of counsel), Monticello, for appellant.

Norman J. Mordkofsky, Loch Sheldrake, respondent in person.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Graffeo, J.), entered February 13, 1998 in Sullivan County, which denied plaintiff's motion for an award of counsel fees.

In February 1984, VCV Development Corporation, the sponsor of a planned unit development located in the Town of Fallsburg, Sullivan County, filed a "Declaration of Covenants, Restrictions, Easements, Charges and Liens" (hereinafter the Declaration) in the County Clerk's Office. The Declaration provides, inter alia, that every owner of a home in the development shall be a member of plaintiff and shall pay to plaintiff an annual assessment of charges which, if unpaid, become a lien on the home. Thereafter, in February 1986, VCV conveyed a home to defendants who, between 1993 and 1995, failed to pay $4,990 in assessments. To collect this sum, plaintiff commenced a foreclosure action against defendants and subsequently obtained summary judgment and the appointment of a Referee to compute. After the Referee computed the amount due, plaintiff moved for a judgment of foreclosure and sale. Supreme Court granted the motion, but reserved on plaintiff's application for counsel fees pending an application on notice to defendants. ¹ Plaintiff followed Supreme Court's direction; however, its application for counsel fees was denied, prompting this appeal. ²

Counsel fees may be recovered in a foreclosure action if authorized by contract (see, Emery v. Fishmarket Inn of Granite Springs, 173 A.D.2d 765, 570 N.Y.S.2d 821; Kenneth Pregno Agency v. Letterese, 112 A.D.2d 1032, 492 N.Y.S.2d 824). Such provisions are strictly construed and unless the contract expressly states that counsel fees are recoverable in a foreclosure action, they are not allowed. Thus, where the contract provided that the defendant would be liable for counsel fees incurred in an action on the note or in a mortgage foreclosure proceeding, counsel fees were awarded (see, Kibbutz Givat Brenner v. Alroy, 171 A.D.2d 589, 567 N.Y.S.2d 456; see also, Emery v. Fishmarket Inn of Granite Springs, supra ). Conversely, where the promissory note provided for counsel fees "if this note be not paid when due", counsel fees were not awarded as the quoted language was not deemed to be the equivalent of an obligation to pay counsel fees in a mortgage foreclosure action (see, Vardy Holding Co. v. Metric Resales, 131 A.D.2d 564, 516 N.Y.S.2d 490; see also, Sibley Mtge. Corp. v. Sobotka, 155 Misc.2d 616, 589 N.Y.S.2d 279, affd. 210 A.D.2d 1001, 621 N.Y.S.2d 966).

In this instance, the Declaration provides:

If any * * * assessment shall remain unpaid * * * the Board may proceed to foreclose the lien * * * in the same manner as the foreclosure of a mortgage. In the event the Member does not pay the assessment * * * said Member shall be liable for the Association's * * * reasonable attorney's fees incurred by it incident to collection or enforcement of such lien.

We conclude that this provision expressly authorizes an award of counsel fees herein since an action to foreclose a mortgage is one to enforce the lien of the mortgage (see, Chelsea/22 Assocs. v. Fleissner, 150 A.D.2d 212, 540 N.Y.S.2d 815; see also, 78 N.Y. Jur. 2d,...