Blair v O'Donnell, 2011 NY Slip Op 05442 (App. Div., 2nd 2011)
However, the plaintiffs failed to establish their entitlement to an award of disbursements and an attorney's fee. Under the general rule, legal fees and disbursements are incidents of litigation, and the prevailing party may not collect them from the unsuccessful party unless an award is authorized by agreement between the parties, statute, or court rule (see Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Khanal v Sheldon, 55 AD3d 684, 686). Here, the parties' contract did not provide for recovery of such items in the event of a breach. Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was for summary judgment on so much of the complaint as sought an award of disbursements and an attorney's fee, and should not have set the matter down for an inquest on disbursements and an attorney's fee. Further, under the circumstances of this case, we award summary judgment to the defendants dismissing this claim of the plaintiffs pursuant to our authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see Sand v City of New York, 83 AD3d 923, 926).