Silberstein v. First Wall Street Capital Corp.

In an action to recover damages for breach of contract, the third-party defendant Gee-Bee Construction Corp. (hereinafter Gee-Bee) appeals from an order of the Supreme Court, Nassau County (Brucia, J.), entered November 14, 1985, which granted the defendants and third-party plaintiffs’ motion to dismiss Gee-Bee’s counterclaim for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

Gee-Bee, by its counterclaim, claims that it is entitled to attorney’s fees and costs of litigation because the defendants and third-party plaintiffs instituted the action against it in bad faith.

Gee-Bee makes no claim that there is any statute, court rule or agreement between the parties that would afford it the relief it seeks. Absent such claim, there is no authority to grant Gee-Bee attorney’s fees or costs of litigation, and the counterclaim fails to set forth a cause of action (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1). Mollen, P. J., Lawrence, Kunzeman and Sullivan, JJ., concur.