Split appeals court reverses ruling on attorney fees

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In a split decision, a state appeals court has reversed an order for the plaintiff to pay the defendant’s attorney’s fees in a defamation case that was dismissed in favor of the defendant.

Daniel Charcholla sued Channel 13 News (13 WHAM). In January 2024, state Supreme Court Justice Elena F. Cariola granted a defense motion for summary judgment.

Charcholla appealed, and, in January 2025, the Appellate Division of state Supreme Court, Fourth Department, unanimously affirmed Cariola’s ruling.

In August 2024, Cariola granted a defense motion seeking attorney’s fees in the case.

Charcholla appealed and the Fourth Department reversed Cariola’s ruling on the fees.

“We agree with plaintiff that Supreme Court erred,” the court wrote.

Under New York Civil Rights Law Section 70-a (1) a defendant in a lawsuit can file a claim for damages from the plaintiff, including costs and attorney’s fees.

In this case, the attorney’s fees and costs were billed to and paid by a nonparty entity and not the defendants.

“Although defendants’ counsel alleged that a corporate relationship existed between defendants and the nonparty entity, defendants established no contractual obligation between them and the nonparty from which to conclude that defendants suffered damages by the imposition of attorney’s fees and costs as contemplated by the statute,” the Fourth Department wrote.

Justice E. Jeannette Ogden dissented.

“I disagree with the majority that Supreme Court erred in granting … defendants’ motion for attorney’s fees and costs pursuant to Civil Rights Law Section 70-a,” Ogden wrote.

“The majority’s rationale in reversing the order is that the attorney’s fees and costs were billed to and paid by a nonparty entity and not defendants. The majority places a burden on defendants to establish the existence of any legal or contractual relationship between defendants and the nonparty entity that served as the payor. That burden is not appropriate here,” Ogden wrote.

“The court properly found that Civil Rights Law Section 70-a (1) does not require that the fees be paid by the named defendant,” she wrote.

“As a remedial statute Civil Rights Law Section 70-a (1) should be liberally construed to carry out the reforms intended and to promote justice … and interpreted broadly,” she wrote.

“There is no express prohibition on the recovery of attorney’s fees and costs that have been advanced or paid by a nonparty for the benefit of the prevailing party,” she wrote.

“At this juncture, defendants — by virtue of being the named defendants in this action involving public petition and participation — are entitled to recover from plaintiff their attorney’s fees and costs,” Ogden wrote.

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