BROADWAY WAREHOUSE CO., PLAINTIFF-APPELLANT,V MEMORANDUM AND ORDERBUFFALO BARN BOARD, LLC, ET AL., DEFENDANTS,AND DAVID R. PFALZGRAF, JR., DEFENDANT-RESPONDENT.BLAIR & ROACH, LLP, TONAWANDA (J. MICHAEL LENNON OF COUNSEL), FORPLAINTIFF-APPELLANT.BOND, SCHOENECK & KING, PLLC, BUFFALO (RIANE F. LAFFERTY OF COUNSEL),FOR DEFENDANT-RESPONDENT.Appeal from an order of the Supreme Court, Erie County (DeborahA. Chimes, J.), entered August 14, 2017. The order granted the motionof defendant David R. Pfalzgraf, Jr., to dismiss the complaint againsthim.It is hereby ORDERED that said appeal is unanimously dismissedwithout costs.Memorandum: Plaintiff commenced this action seeking to recoveramounts due under a written agreement pursuant to which plaintiffleased its warehouse to defendant Buffalo Barn Board, LLC (BBB).Brooks Anderson, BBB’s principal, personally guaranteed the lease, andDavid R. Pfalzgraf, Jr. (defendant) was the attorney who representedBBB. After BBB defaulted on its rental payments, defendant requestedthat plaintiff defer legal action. Plaintiff agreed, on the conditionthat defendant keep plaintiff informed about “the status of therestructuring/ refinancing, and anything that is happening or hashappened (not in the ordinary course of business) that has or mightimpair [plaintiff's] security interest.”Insofar as relevant to this appeal, plaintiff alleged thatdefendant breached his agreement with plaintiff by failing to notifyplaintiff of actions jeopardizing plaintiff’s security interest.Plaintiff further alleged that defendant engaged in fraud andmisrepresentation, which induced plaintiff to defer its legal actionagainst BBB and thereby rendered plaintiff unable to recover theamounts due under the lease agreement. In a prior appeal, wedetermined that Supreme Court (Walker, A.J.) erred in granting thatpart of plaintiff’s motion seeking partial summary judgment on thebreach of contract cause of action against defendant on the groundthat “[p]laintiff failed to meet its initial burden of establishing by‘clear and explicit evidence’ that [defendant] intended ‘to substituteor superadd his personal liability for, or to, that of hisprincipal’ ” (Broadway Warehouse Co. v Buffalo Barn Bd., LLC, 143 AD3d1238, 1242 [4th Dept 2016], quotingSalzman Sign Co. v Beck, 10 NY2d63, 67 [1961] [internal quotation marks fromSalzman Sign Co.omitted]). Defendant thereafter moved pursuant to CPLR 3211 (a) (7)to dismiss the complaint against him, and Supreme Court (Chimes, J.)granted that motion.While this appeal was pending, Anderson, pursuant to his personalguaranty, paid plaintiff the amount due under the lease agreement plusinterest. We agree with defendant that this appeal is now moot andthat the exception to the mootness doctrine does not apply (see Matterof Hearst Corp. v Clyne,50 NY2d 707, 714-715 [1980];see also Matterof Sarbro IX v McGowan, 271 AD2d 829, 830 [3d Dept 2000]). Contraryto plaintiff’s contention, it is not entitled to an award ofattorney’s fees as against defendant. Such fees “may not be awardedin the absence of a statute expressly authorizing their recovery, oran agreement or stipulation to that effect by the parties” (Feeney vLicari, 131 AD2d 539, 539 [2d Dept 1987]). Here, such an award wasnot authorized by any statute, and there was no stipulation oragreement between plaintiff and defendant that would permit such anaward.Entered: June 8, 2018 Mark W. BennettClerk of the Court
