Dorfman v American Educ. Servs.

Dorfman v American Educ. Servs. 2015 NY Slip Op 08136 Decided on November 12, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2015
Tom, J.P., Saxe, Richter, Gische, JJ.
16149 600929/04

[*1] Jessica Dorfman, Plaintiff-Appellant,

v

American Education Services, et al., Defendants, American Student Assistance, Defendant-Respondent.

Thomas Torto, New York, for appellant.

Pitaro & Pitaro, Flushing (Vincent D. Pitaro of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 13, 2014, which, among other things, denied plaintiff's motion to reject the Referee's report, and granted defendant American Student Assistance's (ASA) cross motion to confirm the report, unanimously affirmed, without costs.

Plaintiff's argument on appeal, challenging the award of attorneys' fees to ASA based on the provisions of promissory notes admittedly signed by plaintiff, is improper, as this Court previously affirmed the award (see 104 AD3d 474 [1st Dept 2013]). The sole issue before the Referee was the appropriate amount of such fees, which amount plaintiff does not challenge on appeal.

In any event, even though ASA did not assert a counterclaim, under the terms of the promissory notes, ASA was entitled to attorneys' fees incurred in defending this action, as it was clearly enforcing the terms of the notes (see Cumberland Farms, Inc. v Lexico Enterprises, Inc., 2012 WL 526716, *4, 2012 US Dist LEXIS 19890, *10 [ED NY, Feb. 16, 2012, No. 10-CV-4658 (ADS)(AKT)]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2015

CLERK