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.