Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 3, 2012 mailing of "Constructive Notice":

Attorneys’ Fees Denied in Easement Dispute

The clear winner in an easement obstruction action was denied attorney’s fees, even though the easement agreement provided for them. Chainani v Lucchino, 2012 NY Slip Op 03297 (4th Dept., April 27, 2012). 

By written agreement, the defendants had previously granted the plaintiffs an easement to use their parking lot. The agreement provided that the “prevailing party” in an action brought to enforce rights pursuant to the agreement would be entitled to recover attorneys’ fees and costs. The defendants modified the parking lot in such manner as to interfere with the plaintiffs’ easement, and this action followed. The parties stipulated that the defendants would remove the obstructions, and the plaintiffs would dismiss their cause of action seeking an injunction. The plaintiffs then sought to recover attorneys’ fees. Supreme Court denied recovery. In a 3-1 split, the Appellate Division panel affirmed.

The majority opinion states that the plaintiffs alleged that defendants breached the easement agreement, “thus, the ‘true scope’ of the dispute was whether defendants’ [sic] breached the ... agreement.” Since the plaintiffs “did not obtain the full measure of injunctive relief they sought, did not receive an award of damages and, importantly, did not obtain a determination that defendants breached the ... agreement” they “obtained only a small measure of the overall relief they sought” and were ineligible to collect under the attorneys’ fees provision.


The dissent lays out several good legal arguments in opposition to the majority reasoning, including the fact that the parties expressly reserved their rights to seek attorneys’ fees as part of the stip. But it does not address the wisdom of the holding. The majority’s rationale seems like it would incentivize parties with strong cases to push ahead to a determination on the merits rather than settle. Why keep cases in the system longer than necessary? Especially when it is in both parties’ economic interest to settle?