Chiu v. Hoydal

—In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from so much of a judgment of the Supreme Court, Richmond County (Cusick, J.), dated November 20, 1996, as awarded attorneys’ fees of only $8,500. Ordered that the judgment is affirmed insofar as appealed from, with costs. Although the note secured by the mortgage included a provision requiring the mortgagors to pay counsel fees of 15% of all sums due in the event that the note was subject to collection, the appellant is not entitled to such a fee as a matter of law as this provision was not included in the mortgage instrument itself (see, Vardy Holding Co. v Metric Resales, 131 AD2d 564; Lipton v Specter, 96 AD2d 549; see generally, 2 Bergman, New York Mortgage Foreclosures § 26.01). Rather, the court correctly determined that the appellant was entitled to an award of legal fees on a quantum meruit basis, reflecting the reasonable value of the legal services provided by his attorney (see, Chelsea 122 Assocs. v Fleissner, 150 AD2d 212; see, e.g., Bankers Fed. Sav. Bank v Off W. Broadway Developers, 224 AD2d 376). The court providently exercised its discretion in its award of counsel fees, which was rendered after a hearing before a Referee. We have reviewed the appellant’s remaining contentions and find them to be without merit. Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.