Opinion
2003-06053.
Decided April 12, 2004.
In an action, inter alia, to recover the cost of care provided to the defendant's decedent, the defendant appeals from a judgment of the Supreme Court, Westchester County (Collabella, J.), dated June 9, 2003, which, upon the granting of the plaintiff's motion for summary judgment, is in favor of the plaintiff and against her in the principal sum of $21,900 and awarding an attorney's fee in the sum of $12,000 plus costs and disbursements.
Arnold S. Kronick, White Plains, N.Y., for appellant. Clark, Gagliardi Miller, P.C., White Plains, N.Y. (John S. Rand of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the facts, by deleting the provision thereof awarding the plaintiff an attorney's fee in the sum of $12,000 plus costs and disbursements; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.
The plaintiff nursing home commenced this action to recover the cost of care provided to the defendant's decedent, and for an attorney's fee and interest. Contrary to the defendant's contention on appeal, there is no triable issue of fact as to the plaintiff's cause of action alleging breach of contract ( see Zuckerman v. City of New York, 49 N.Y.2d 557). Thus, the Supreme Court properly awarded the plaintiff judgment on that cause of action plus contractual interest.
The defendant's argument that the contract at issue was one of adhesion is raised for the first time on appeal and therefore, is not properly before this court ( see Mancini v. Pedra Constr., 293 A.D.2d 453, 454). Further, the argument is not one of law which could not have been avoided if raised at the proper juncture. Consequently, it is not one which may be reached for the first time on appeal ( cf. Deltoro v. Arya, 305 A.D.2d 628, 629; Weiner v. MKVII-Westchester, 292 A.D.2d 597).
However, on the record presented, the Supreme Court erred in awarding the plaintiff an attorney's fee and costs and disbursements, as there are questions of fact requiring a hearing as to the reasonableness thereof ( see O'Connor v. Blodnick, Abramowitz Blodnick, 295 A.D.2d 586; M. Sobol, Inc. v. Wykagyl Pharmacy, 282 A.D.2d 438; Sand v. Lammers, 150 A.D.2d 355).
RITTER, J.P., GOLDSTEIN, TOWNES and CRANE, JJ., concur.