Weiss v Law Offs. of Mitchell N. Kay

[*1] Weiss v Law Offs. of Mitchell N. Kay 2007 NY Slip Op 50746(U) [15 Misc 3d 135(A)] Decided on April 9, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, KLEIN HEITLER, JJ
570016/07.

Martin I. Weiss, Plaintiff-Respondent,

against

Law Offices of Mitchell N. Kay, Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered March 8, 2005, which denied its cross motion to dismiss the complaint.

PER CURIAM:

Order (Peter H. Moulton, J.), entered March 8, 2005, modified to dismiss plaintiff's second cause of action, and as modified, affirmed, without costs.

Assuming the facts alleged in the complaint to be true and according plaintiff the benefit of every possible favorable inference (see Jericho Group, Ltd. v. Midtown Development, L.P., 32 AD3d 294 [2006]), the complaint sufficiently stated a cause of action for breach of contract (see 22 NYCRR 1200.15-a[a]). However, plaintiff's second cause of action for legal fees should have been dismissed since "in the absence of an explicit statutory or contractual authority therefor, a right to attorneys' fees will not be inferred" (Campbell v. Citibank, N.A., 302 AD2d 150 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 2007