Fleig Servs. Inc. v American Recycling & Mfg. Co., Inc.

Fleig Servs. Inc. v American Recycling & Mfg. Co., Inc. 2021 NY Slip Op 00731 Decided on February 5, 2021 Appellate Division, Fourth 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 February 5, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
900 CA 19-02165

[*1]FLEIG SERVICES INC., DOING BUSINESS AS CNC PRODUCTIVITY, PLAINTIFF-RESPONDENT,

v

AMERICAN RECYCLING & MANUFACTURING CO., INC., DEFENDANT-APPELLANT.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR DEFENDANT-APPELLANT.

Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Renee Forgensi Minarik, A.J.), entered April 26, 2019. The order and judgment, inter alia, awarded plaintiff money damages after a nonjury trial and awarded plaintiff costs, disbursements and attorneys' fees.

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by vacating the award of costs and disbursements and attorneys' fees and as modified the order and judgment is affirmed without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: On appeal from an order and judgment entered following a nonjury trial that awarded plaintiff damages, costs and disbursements, and attorneys' fees, defendant contends that the award of costs and disbursements and attorneys' fees is excessive. In determining the proper amount of those items, a court "should consider the 'time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained' " (Matter of HSBC Bank USA, N.A. [Vaida], 151 AD3d 1712, 1713 [4th Dept 2017]; see Matter of HSBC Bank USA, N.A. [Campbell], 150 AD3d 1661, 1663 [4th Dept 2017]). Because Supreme Court failed to make any findings with respect to those factors, we are unable to review the court's implicit determination that the costs and disbursements and attorneys' fees are reasonable (see HSBC Bank USA, N.A. [Vaida], 151 AD3d at 1713). We therefore modify the order and judgment by vacating the award of costs and disbursements and attorneys' fees, and we remit the matter to Supreme Court for a determination whether those costs and disbursements and fees are reasonable, following a hearing, if necessary (see id.).

We have reviewed defendant's remaining contentions and conclude that they do not warrant reversal or further modification of the order

and judgment.

Entered: February 5, 2021

Mark W. Bennett

Clerk of the Court