Opinion
CA 02-00791
February 7, 2003.
Appeal from a judgment of Supreme Court, Cattaraugus County (Ward, J.), entered December 3, 2001, which, inter alia, settled title of the subject premises in favor of plaintiff upon a decision of the court.
LO TEMPIO BROWN, P.C., BUFFALO (MARY L. SLISZ OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
WATSON, BENNETT, COLLIGAN, JOHNSON SCHECHTER, L.L.P., BUFFALO (MARK R. WALLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the damages award by the sum of $1,925 and the interest thereon and by vacating the award of attorneys' fees and as modified the judgment is affirmed without costs.
Memorandum:
Supreme Court properly found that plaintiff is vested with legal title to the subject premises and that defendants failed to establish title by adverse possession. The court erred, however, in awarding plaintiff damages for expenses incurred in procuring the expert services and testimony of one surveyor and the expert services of another surveyor. Expenses incurred for the retention and testimony of an expert are not an element of compensatory damages (see Miss Susan, Inc. v. Enterprise Century Undergarment Co., 270 App. Div. 747, 750, affd 297 N.Y. 512, rearg denied 297 N.Y. 884; see generally 36 N.Y. Jur 2d, Damages § 91). We further conclude that the court abused its discretion in directing that defendants pay approximately one half of plaintiff's attorneys' fees as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1. In our view, defendants' conduct in defending the action was not "completely without merit in law" (130-1.1 [c] [1]; see Amherst Magnetic Imaging Assoc. v. Community Blue, HMO of Blue Cross of W.N.Y., 286 A.D.2d 896, 898, lv denied 97 N.Y.2d 612). We therefore modify the judgment by reducing the damages award by the sum of $1,925 and the interest thereon and by vacating the award of attorneys' fees.