Lipton v. Specter

— In an action to foreclose a second mortgage, defendants Kenneth and Sylvia Specter appeal from a judgment of the Supreme Court, Queens County (Buschmann, J.), dated October 15, 1982, which, inter alia, foreclosed a second mortgage on certain premises and directed a public auction thereof subject to the prior mortgage. Judgment modified, on the law, by striking from the first decretal paragraph thereof the award of $3,200 in counsel fees to plaintiffs, by reducing the principal amount of the judgment by said sum from $41,103.15 to $37,903.15, and by adding thereto a provision denying counsel fees to the plaintiffs. As so modified, judgment affirmed, with costs to plaintiffs, and matter remitted to the Supreme Court, Queens County, for further proceedings consistent herewith. We find that the trial court improperly granted plaintiffs $3,200 in counsel fees. The mortgage provided for the award of counsel fees in actions other than to foreclose the mortgage. The promissory note evidencing the underlying obligation provided for counsel fees to be awarded “in case any instalment under this Note is not paid when due”. That provision in the note is not the equivalent of an obligation to pay reasonable counsel fees in an action to foreclose a mortgage (Jamaica Sav. Bank v Cohan, 38 AD2d 841). Thus, the award of counsel fees in the case at bar was improper. Plaintiffs alternatively request that we grant discretionary costs pursuant to CPLR 8303 (subd [a]). Expressing no view on the merits of this request, we remit the matter to the Supreme Court, Queens County, for consideration of the matter in its discretion upon proper motion by plaintiffs. We have examined appellant’s remaining contentions on appeal and find them to be without merit. Damiani, J. P., Mangano, O’Connor and Niehoff, JJ., concur.