Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2023-01579, (Index No. 610280/19)

Colleen D. Duffy, J.P.

William G. Ford

Laurence L. Love

Donna-Marie E. Golia, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered February 6, 2023. The order granted the defendant's motion pursuant to CPLR 3220 for an award of attorneys' fees and costs and awarded the defendant attorneys' fees and costs in the sum of $11,473.

ORDERED that the order is affirmed, without costs or disbursements.

In July 2019, the plaintiff commenced this action against the defendant, inter alia, to recover damages for breach of contract arising out of a rental agreement between the parties to use certain real property located in Oyster Bay.

In advance of trial, the defendant served a written offer, dated February 14, 2022, to liquidate damages pursuant to CPLR 3220. The plaintiff did not accept the offer. A nonjury trial ensued, commencing on April 1, 2022, and concluding on April 11, 2022.

Following the trial, the Supreme Court awarded damages to the plaintiff in the amount of $3,910.60—an amount less than the defendant's earlier offer pursuant to CPLR 3220. The defendant thereafter moved pursuant to CPLR 3220 for an award of attorneys' fees and costs—specifically, for an award of the "expenses necessarily incurred" as a result of the plaintiff trying the issue of damages from the time of the defendant's offer to the conclusion of the trial. The plaintiff opposed the motion.

In an order entered February 6, 2023, the Supreme Court granted the defendant's motion pursuant to CPLR 3220 for an award of attorneys' fees and costs and awarded the defendant attorneys' fees and costs in the sum of $11,473. The plaintiff appeals.

CPLR 3220 provides, in relevant part: "At any time not later than ten days before trial, any party against whom a cause of action based upon contract . . . is asserted may serve upon the claimant a written offer to allow judgment to be taken against him [or her] for a sum therein specified, with costs then accrued, if the party against whom the claim is asserted fails in his [or her] defense. . . . If the offer is not . . . accepted and the claimant fails to obtain a more favorable judgment, he [or she] shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer. The expenses shall be [*2]ascertained by the judge or referee before whom the case is tried" (see Saul v Cahan, 153 AD3d 951, 952-953).

Contrary to the plaintiff's contentions, here, CPLR 3220 is applicable even though the plaintiff pleaded other causes of action in addition to breach of contract (see Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 186 AD3d 585, 588; Saul v Cahan, 153 AD3d at 951). Further, the record indicates that the defendant timely served the offer to liquidate damages pursuant to CPLR 3220 not later than 10 days before trial and that the defendant did not concede the issue of liability before trial.

Here, contrary to the plaintiff's contention, CPLR 3220 authorizes the recovery of attorneys' fees, and the term "expenses" under CPLR 3220 encompasses such fees (see Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 186 AD3d at 588). "The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court" (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036). "The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community" (id. at 1036). Here, based on the defendant's submissions, the Supreme Court's award of attorneys' fees and costs in the sum of $11,473 was reasonable (see id. at 1035-1036; Diaz v Audi of Am., Inc., 57 AD3d 828, 830).

The plaintiff's remaining contention is without merit.

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court