On November 9, 2023, Justice Crane of the New York County Commercial Division issued a decision in Kubera N. Am., Inc. v. Inhibikase Therapeutics, Inc., 2023 NY Slip Op. 34026(U), holding that when an action had a mixed outcome, neither party was entitled to fees as a prevailing party, explaining:
In determining whether a party is a prevailing party for the purposes of awarding attorneys’ fees, the court must consider the true scope of the dispute litigated and what was achieved within that scope. To be a prevailing party, one must prevail on the central claims advanced, and receive substantial relief in consequence thereof.
Here, plaintiff prevailed on Count I of the Amended Complaint, but defendant prevailed in its defense against Count II. For Count I, the court awarded plaintiff summary judgment on its cause of action for breach of this Consulting Agreement, and plaintiff obtained a judgment for damages in the amount of $210,002. In Count II, plaintiff sought declaratory relief and damages on the grounds that the underlying Warrant, which was incorporated into the Consulting Agreement, was orally modified to make the warrant option cashless. The court dismissed Count II on the merits, holding that defendant is not liable for damages to Kubera because there was not an enforceable agreement to grant Kubera a cashless exercise right in its Warrant. In a January 3, 2022 dated letter to the Clerk of the Court, plaintiff’s counsel asserted that Count II is worth no less than $1,921,429.25.
The mixed outcome of this litigation was not substantially favorable to either party. Accordingly, the court finds that neither party is entitled to the status of a prevailing party for the purpose of recovering their attorneys’ fees.
(Internal quotations and citations omitted).