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Can you counter sue for legal fees in NY.
Anonymous3 views4 answers
My parents are being sued for $200,000 by a neighbor. He is claiming they "maliciously caused property damage". Saying that when they dug out the ditch behind their house they did it in such a way to purposefully cause water to back up and therefore damage to his property. Also that they did not have the right to cut down a tree that was along the property line even though it was on their side and they planted it 30 years ago. My question is are they allowed to counter sue for legal fees? Their attorney just asked for $7000 as a retainer. Can someone just sue you for anything and then you have to spend your money to fight them and you cant fight to get any of that money back?
Richard J. ChertockReal Estate AttorneyMelville, NY ·
In this country anyone can sue at any time and we do not have a loser pays law for court costs and attorney's fees as in other countries. Your parents can bring a counterclaim, but not for the cost of defending a lawsuit. There have been instances where costs and attorney's fees have been awarded but that is mostly limited to where a case is brought maliciously or frivilously. If your parents can get the case dismissed as being frivilous then they may be able to get an award of damages or costs. If there is a triable issue of fact it is unlikely that they can get the costs of litigation.
Dear Asker:
Generally, in the USA, parties are responsible for their own legal fees, except where a statute or contract provides that the prevailing party's legal fees are paid by the loser. A court may also award legal fees as a sanction, if the judge determines that the main purpose for the lawsuit was found to be frivolous.
"****(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.***"
[Excerpt from Rules of the Chief Administrative Judge - Part 130.
http://www.nycourts.gov/rules/chiefadmin/130.shtml#101]
Ordinarily, your parents' insurance would defend the lawsuit, so their attorney may also chase their insurer for coverage.
Why not have their attorney explain the plan for defense and recovery of fees. If your parents are not comfortable with their attorney before they pay and sign a retainer agreement, they may decide to shop around.
Good luck.
You can only recover legal fees in certain statutory causes of action where the statue so allows. The claims brought against your parents sound like common law claims ( i.e negligence) and you cannot recover attorneys fees against the plaintiff if you prevail on the merits. Small consolation... but you can recover a bill of costs ( certain filing fees, subpoena costs etc) if you obtain a summary judgment order dismissing the case. Depending on how far you litigate the case, the costs go up.
