Opinion
2012-07-5
NEIGHBORHOOD HOUSING SERVICES OF NEW YORK CITY, INC., appellant, v. Floyd HAWKINS, respondent, et al., defendants.
Cullen and Dykman, LLP, Garden City, N.Y. (Ruth O'Connor of counsel), for appellant. David J. Bryan and Andrew Malozemoff, Brooklyn, N.Y., for respondent.
Cullen and Dykman, LLP, Garden City, N.Y. (Ruth O'Connor of counsel), for appellant. 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 Supreme Court, Kings County (Silber, J.), dated April 7, 2011, which denied those branches of its motion which were for summary judgment on the complaint and dismissing the counterclaim of the defendant 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 that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaim of the defendant Floyd Hawkins, which sought an award of an attorney's fee, and substituting therefor 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 by presenting the subject mortgage, the unpaid note, and evidence of the default of the defendant Floyd Hawkins ( see Neighborhood Hous. Servs. of N.Y. City, Inc. v. Meltzer, 67 A.D.3d 872, 873, 889 N.Y.S.2d 627;Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625–626, 883 N.Y.S.2d 135;Washington Mut. Bank, F.A. v. O'Connor, 63 A.D.3d 832, 833, 880 N.Y.S.2d 696). 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 were never authorized ( see Bankers Trust Co. of Cal., N.A. v. Sciarpelletti, 28 A.D.3d 408, 411, 816 N.Y.S.2d 71). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the complaint.
However, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment dismissing Hawkins's counterclaim, which sought an award of an attorney's fee. Since there is no statute in New York authorizing the recovery of an attorney's fee in a mortgage foreclosure action, such a fee may only be recovered if it is contractually authorized ( see Levine v. Infidelity, Inc., 2 A.D.3d 691, 692, 770 N.Y.S.2d 83). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law dismissing the counterclaim by demonstrating that there is no contractual provision obligating it to pay Hawkins an attorney's fee. Hawkins failed to raise a triable issue of fact in opposition.