In Vanderwerken v. Bellinger, 72 AD3d 1473 [3d Dept 2010] the Appellate Division found that the lower court properly concluded that RPAPL 861 (1) applied to the facts of the case. (Vanderwerken at 1475.) Later in its decision, the Third Department stated: "the record is unclear as to why Supreme Court denied plaintiffs' request for counsel fees. The contract, as well as RPAPL 861, provides that such fees may be awarded in the event of a breach." (Id. at 1476.)