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Adam Leitman Bailey, P.C. Breaks New Legal Ground With Appellate Victory For Attorneys’ Fees On A Stipulation


Luxury penthouse apartment suffering from various deficiencies sued for damages

Issue on appeal was whether attorneys awarded per contract to the prevailing party constituted one party surrendering the minute the first witness was called to the stand. Developer argued that since it provided unit owner 100 percent of the amounts owner would have possibly won after litigation before the trial started, the owner should not be able to collect attorney fees under a provision in the contract allowing the prevailing party to collect attorney fees from the losing party.

ALBPC prepared for and reported to trial. The judge asked Plaintiff to call its first witness. Defendant developer objected to the trial and proffered a check all of the monies Plaintiffs could win at trial.

Trial judge sent the matter to a Referee to determine legal fees and expenses. The Referee found that since no trial commenced the Plaintiff could not be declared the prevailing party in this action.

For the first time in a New York Appellate Court, the panel of judges reversed the lower court and determined that a trial was unnecessary to award attorney fees. The court declared that the “court must consider the ‘true scope’ of the dispute litigated and what was achieved within that scope. To be considered a ‘prevailing party,’ one must simple

prevail on the central claims advanced, and receive substantial relief in consequence…”. “Although the received the funds the sought through stipulation rather than through a judicial determination, they sufficiently prevailed on their claim. Accordingly, plaintiffs are entitled to recoup their attorneys’ fees, pursuant to the provision of the agreement allowing for fee to the ‘prevailing party.'”

Adam Leitman Bailey, John Desiderio and William Geller represented Adam Leitman Bailey, PC at the trial level and appeal.

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Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS