Key Points

  • The Appellate Division, Second Department, reversed a Westchester County order that had granted Jonathan Davidoff summary judgment on liability for attorneys' fees incurred in a prior appeal and in his new suit.
  • The court held that an award of fees for pursuing a fee award, known as fees on fees, must rest on a specific contractual provision or statute.
  • The court held that a contract assuming an indemnification obligation is strictly construed and that a right to fees on fees will not be implied absent unmistakably clear intent.
  • Because the promissory note contained no language referring to fees incurred to recover attorneys' fees, the court granted the Hershfields' CPLR 3211(a) motion and dismissed the complaint.
  • The court held that Davidoff's remaining contention was improperly raised for the first time on appeal.

A New York appeals court on Oct. 14 threw out a lawyer's lawsuit seeking the legal fees he spent defending an earlier fee award, holding that a contract must clearly provide for recovery of the cost of fighting over fees before a court will order the other side to pay them.

The Appellate Division, Second Department, reversed a Westchester County judge's ruling that Jonathan Davidoff could collect from Bruce and Vicki Hershfield the fees he incurred in a prior appeal and in bringing the new suit. The four-justice panel ruled unanimously in an unsigned decision and order. It denied Davidoff summary judgment, granted the Hershfields' motion to dismiss his complaint and awarded them costs.

The decision addresses what New York courts call "fees on fees," meaning attorneys' fees incurred in pursuing an award of attorneys' fees. The panel held that the promissory note at the center of the dispute did not give Davidoff that right, because the note never expressly mentioned such fees. Under the ruling, a court will not infer that right from a contract silent on the point.

The dispute began in October 2018, when the Hershfields sued Davidoff, among others, for declaratory relief and to recover on the note. Davidoff moved to dismiss under CPLR 3211(a) and asked for attorneys' fees.

Supreme Court granted both requests in a May 24, 2019, order. After a hearing, the court awarded Davidoff $20,207.86 in attorneys' fees in an order dated April 30, 2020. The Hershfields appealed the fee award, and the Second Department affirmed it in Hershfield v Davidoff, 233 AD3d 923.

Davidoff then filed the present action against the Hershfields. He alleged that the terms of the note entitled him to recover the attorneys' fees and costs he spent on the prior appeal and on bringing the new case. His complaint attached the note and the Second Department's decision on the earlier appeal.

The Hershfields moved to dismiss on March 28, 2025. Davidoff opposed the motion on April 9, 2025, and cross-moved for summary judgment on liability.

Charles D. Wood of Westchester County Supreme Court sided with Davidoff in an order dated June 5, 2025. Wood determined that Davidoff was entitled to the fees for the prior appeal and the new action "under the clear terms of the note," as the appellate decision described the ruling. Wood then denied the Hershfields' motion to dismiss as academic.

The appellate panel, made up of Francesca E. Connolly, who presided, and Linda Christopher, Lillian Wan and Susan Quirk, held that Wood should have ruled the other way on both motions. The panel began from the principle that a court interprets an unambiguous contract as a matter of law, from the writing alone and without outside evidence.

The panel then set out the rule that controlled the case. "[A]n award of attorneys' fees for the costs incurred in prosecuting a claim for an award of attorneys' fees, so called 'fees on fees,' must be based upon a specific contractual provision or statute," the panel wrote, quoting Matter of Lillian G.

Quoting IG Second Generation Partners, L.P. v Kaygreen Realty Co., the panel added that "where a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed." The court also cited Hooper Assoc. v AGS Computers, 74 NY2d 487.

Applying those rules, the panel held that Davidoff "failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability for breach of contract."

The panel located the defect in the text of the note. "The note did not contain clear language expressly providing for the prevailing party to recover fees on fees or any reference to fees incurred to recover attorneys' fees," the panel wrote. It cited Hawthorne Funding, LLC v Karish Kapital, LLC and 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty.

From that silence the panel drew its conclusion, again quoting IG Second Generation Partners. "Given the absence of unmistakably clear intent regarding the recovery of fees on fees, a right to recover those fees should not be implied," the court wrote, also citing 546-552 W. 146th St. LLC v Arfa.

The panel did not stop at denying Davidoff's cross-motion. "Moreover, for the same reasons, the court should have granted the Hershfields' motion pursuant to CPLR 3211(a) to dismiss the complaint," the decision said. Because the note's text alone defeated the claim, the panel ordered the complaint dismissed outright.

The panel disposed of Davidoff's other argument in a single sentence, holding that his "remaining contention is improperly raised for the first time on appeal." The decision does not describe that contention.

Scott E. Reynolds of Reynolds Law Group LLC represented the Hershfields. Davidoff represented himself through his firm, Davidoff Law Firm, PLLC.

The order reverses Wood's ruling on the law, with costs to the Hershfields, and grants their motion to dismiss Davidoff's complaint. The decision is marked uncorrected and subject to revision before publication in the Official Reports.