Practice point: New York
follows the so-called American Rule, which is that an attorney's fee is merely
an incident of litigation and is not recoverable absent a specific contractual
provision or statutory authority.
Student note: Accordingly, a contractual provision
permitting the prevailing party to recover fees that are incidents of
litigation will be construed strictly. A promise assuming the obligation to pay fees will not be given effect unless it can be
clearly implied from the language and purpose of the entire agreement and the
surrounding facts and circumstances.
Case: 214 Wall St.
Assoc., LLC v. Medical Arts-Huntington Realty, NY Slip Op 07103 (2d Dept.
2012).
Tomorrow’s issue: Defense based on documentary evidence.
