Opinion
June 18, 1999
Appeal from Judgment of Supreme Court, Chautauqua County, Gerace, J. — CPLR art 78.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND SCUDDER, JJ.
Judgment insofar as appealed from unanimously reversed on the law without costs and declaration and award of attorney's fees and costs vacated. Memorandum: Supreme Court erred in awarding attorney's fees to petitioner upon dismissal of this CPLR article 78 proceeding. "'In New York the general rule is that each litigant is required to absorb the cost of his own attorney's fees and a defendant may not be required to pay plaintiff's attorney's fees in the absence of a contractual or statutory liability'" (Umfrey v. NeMoyer, 184 A.D.2d 1047, 1048, quoting Harradine v. Board of Supervisors, 73 A.D.2d 118, 121; see, Hooper Assocs. v. AGS Computers, 74 N.Y.2d 487, 491). The court also erred in awarding petitioner costs. Although costs may be awarded in a CPLR article 78 proceeding (see, 24 Carmody-Wait 2d, N Y Prac § 145.407), only a "party in whose favor a judgment is entered is entitled to costs" (CPLR 8101). Additionally, the court erred in declaring that respondent waived the right to recover certain excess payments uncovered during an audit. That issue was not properly before the court because petitioner never sought such a declaration and respondent never counterclaimed to recover the money.