Opinion
18549/07.
Decided July 20, 2010.
Jeffrey Hulse, Esq., Attorney for Plaintiff, Hauppauge, NY.
Baxter Smith Tassan Shapiro, P.C., By: David L. Rosinsky, Esq., Attorneys for Defendant, Jericho, NY.
In this action for damage to property between neighboring property owners, this court granted summary judgment to the defendant dismissing the complaint, 2009 WL 159126, and that decision was recently affirmed, "with costs". Hulse v. Simoes , 71 AD3d 1086 (2d Dept. 2010).
The respondent defendant has submitted a request for costs and disbursements, both in the Appellate Division and in the trial court of $9,105.68 and appellant/plaintiff has submitted a counter proposed judgment for costs of $250.00.
Plaintiff's principal objection is to the assessment of Appellate printing costs ($2,946.73), expert witness fees ($3,320.50) and stenographers fees ($1,227.70).
Initially, the Court notes that any contest as to the amount or necessity for a given cost or disbursement generally arises as a challenge to the Clerk's taxation, by way of a motion to the court for re-taxation of costs. See, CPLR 8404; Matter of Verga, 99 AD2d 534 (2d Dept. 1984). However, as the plaintiff, proponent of the counter-judgment, has presented her arguments here, and no procedural objection has been raised by the defendant, the Court finds that it will serve the purposes of judicial economy to consider the plaintiff's objections at this time, and to issue this order as both guide and direction to the Clerk.
Costs and disbursements resulting from proceedings at the trial court and on an appeal may be had in a judgment granted by the trial court thereafter, provided there is a basis for them under the Civil Practice Law and Rules. CPLR 8101, 8107, 8301(a); See, Shapiro v Aetna Cas. and Surety Co., 73 AD2d 616 (2d Dept. 1979); Siegel, New York Practice at 702-704, 710-712 (4th ed); See also, East Thirteenth Street Community Assn. v New York State Urban Dev. Corp., 164 Misc 2d 589 (Sup Ct New York County 1995), cited with approval in P N Tiffany Prop. Inc. v Maron , 34 AD3d 548 (2d Dept. 2006).
The Court cannot agree with the plaintiffs that the defendant is not entitled to costs in the trial court because the decision granting defendant summary judgment did not specifically award them. Summary judgment is the procedural equivalent of a trial ( S.J. Capelin Assocs. Inc. v Globe Mfg. Corp., 34 NY2d 338), and thus even absent an appeal there is no basis for denying those statutory costs or disbursements that would otherwise be available to the successful litigant, simply because the case ended on summary judgment. Certainly, there is no authority to which the plaintiff points that CPLR Article 81 does not apply unless the court's order on summary judgment specifically makes mention of costs. Indeed, the reverse is true. A party in whose favor judgment is to be entered is entitled to costs in the action unless the court determines that to allow costs would be inequitable. CPLR 8101. No such determination was made. This is to be distinguished from costs on a motion, which is a matter of the Court's discretion, and which were not awarded here. CPLR 8106. It should be noted that a motion was made to the Appellate Division during the pendency of the appeal, but no costs on that motion were awarded either.
Accordingly, the Clerk is directed to award costs in the action, to the extent allowed by statute, but not the motion costs requested in the amount of $180.00 (CPLR § 202(d)).
Turning to the issue of disbursements, the Court agrees with the plaintiffs that defendant is not entitled to expert witness fees. These are not recoverable absent extraordinary circumstances. Board of Educ. of Northport-East Northport Union Free School Dist. v Ambach, 90 AD2d 227 (3d Dept. 1982), affd 60 NY2d 758 (1983). Such circumstances are not present here. The plaintiff is also correct with regard to the certified copy of the judgment ($5.00), as this is not contemplated by CPLR 8301 unless "necessarily obtained for use at trial." CPLR 8301(a)(4). There was no necessity for this paper demonstrated by the defendant. Further, although the defendant is entitled to stenographer's fees, this is limited to $250. CPLR 8301(a)(9). Accordingly, there shall be no disbursement for expert witness fees or copy of the judgment, and stenographer's fees may be taxed in the amount of $250.
The Court does not agree with the plaintiff concerning appellate printing costs. Printing charges which constitute "reasonable expenses" may be deemed "necessary disbursements." CPLR 8301(a); East Thirteenth Street Community Assn. v New York State Urban Dev. Corp., 164 Misc 2d 589, supra, at 592. Plaintiff argues, in effect, that because the Appellate Division directed upon defendant's motion that she file a supplemental appendix but only permitted the defendant/respondent to file a respondent's appendix that the respondent's appendix was not "necessary." The Court cannot agree with this interpretation, as it would mean that exercising the right to present his own appendix was conditioned on losing the disbursement, even if he prevailed on appeal.
In its order directing the filing of a supplemental appendix by the plaintiff, the Appellate Division stated the defendant/respondent's motion to dismiss the appeal was "otherwise denied without prejudice to the filing of a respondent's appendix ( see CPLR 5528[b]);"
Although it is true that respondent's appendix "shall contain only such additional parts of the record as are necessary to consider the questions involved" (CPLR 5528[b]), the plaintiff has not adequately demonstrated how the bulk of respondent's appendix was redundant of her own appendix or was otherwise unnecessary. She states that a copy of her deposition transcript was irrelevant, but does not address what she raised on appeal (no appellate brief or point headings are submitted), concerning which the transcript may or may not have been relevant.
The Court agrees that plaintiff should not bear the cost of reproducing this Court's prior decision and order which inter alia deny defendant's motion to disqualify plaintiff's counsel and for discovery sanctions, the Town permit for construction of the pool allegedly damaged by defendant's actions and the affidavits of two of defendant's experts (Balwin and Berliner) and attached exhibits, as they were not considered by the undersigned. As defendant prevailed without the expert affidavits and thus had no basis for a cross appeal, these papers could have no bearing on the outcome on plaintiff's appeal to the Appellate Division. The inclusion of the inspection report of Joseph Schmitt was redundant and thus unnecessary, because plaintiff's counsel states, without contradiction, that it was included in plaintiff's own appendix. The cost of reproducing these pages, at $4.25 a page (the rate for the complete appellate printing, per page), should not be taxed as a disbursement. The defendant's attorney shall submit a supplemental affirmation to the Clerk indicating how much should be deducted from the printing disbursement sought.
Finally, the Court cannot agree with the plaintiff that the printing costs charged to defendant by the appellate printer he used were excessive and should be reduced to what she considers to be a reasonable rate. The "reasonable" standard "does not mean that only the cheapest provider may be used." East Thirteenth Street Community Assn. v New York State Urban Dev. Corp., 164 Misc 2d 589, supra, at 594. Accordingly, the Clerk shall make no adjustment to printing costs, excepting what is found in this order.
The Clerk is directed to tax costs and disbursements consistent with the foregoing.This shall constitute the Decision and Order of this Court.
Judgment signed simultaneously herewith.