Court Holds that CPLR 3220 Award Only Available When Matter Has Gone to Trial

On April 7, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Loeb Enters. II, LLC v. Florence, 2020 NY Slip Op. 31532(U), holding that a CPLR 3220 award of costs, expenses, and attorney’s fees is only available when a matter has gone to trial, explaining:

To the extent that the Defendant seeks to recover costs, expenses, and attorney’s fees since offering a proposed judgment in April 9, 2019, this is denied because CPLR § 3220 only permits a party to recover attorney’s fees after a trial has been commenced, and this case remains at the discovery stage.

This decision is consistent with the Second Department's decision in Saul v. Cahan, 2017 NY Slip Op. 06391, holding that a party cannot get attorneys’ fees pursuant to an offer to liquidate damages under CPLR 3220 unless the action goes to trial. It does not discuss the First Department's March 2014 decision in Abreu v. Barkin & Associates Realty, Inc., 2014 NY Slip Op. 02146, holding that a defendant was entitled to attorneys' fees under CPLR 3220 even if the claims were dismissed before trial. (See our blog post here).

Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding litigating an attorney fee award.