Clelland v. Lettro

Appeal from a judgment of the Supreme Court, Monroe County (Andrew V Siracuse, J.), entered May 7, 2004. The judgment was entered upon an order granting plaintiffs’ motion for summary judgment in an action for breach of contract.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Plaintiffs commenced this action to recover damages for the alleged breach of a contract under which defendant was to build plaintiffs a house. Defendant counterclaimed for damages for plaintiffs’ alleged failure to make payments called for by that contract. Defendant appeals from a judgment entered upon an order granting the motion of plaintiffs for summary judgment on their complaint, thereby awarding them $7,000 on their first cause of action, $718.20 on their second cause of action, and $9,090 on their third cause of action, plus $1,800 in attorney’s fees.

We conclude that Supreme Court erred in granting plaintiffs’ motion for summary judgment on each of the three causes of action. “There are triable questions of fact concerning the terms of the agreement between the parties” (Buffalo Newspress v Coleman Communications Corp., 8 AD3d 969, 969 [2004]; see Dec v Auburn Enlarged School Dist., 249 AD2d 907, 909 [1998]). Further, there are triable questions of fact concerning which party, plaintiffs or defendant, breached the contract (see Stalls v Sugar Cr. Stores, 295 AD2d 939, 942 [2002]). In addition, we conclude that the court erred in granting plaintiffs’ request for attorney’s fees. A prevailing party is not entitled to have his attorney’s fees paid by the loser unless such an award is authorized by agreement between the parties, statute, or court rule (see Chapel v Mitchell, 84 NY2d 345, 349 [1994]; Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Present— Hurlbutt, J.P, Kehoe, Gorski, Pine and Hayes, JJ.