Opinion
2012-01-31
S.P.Q.R. CO., INC., et al., appellants, v. UNITED ROCKLAND HOLDING COMPANY, INC., et al., respondents, et al., defendants.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Evan Wiederkehr of counsel), for appellants. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Reginald H. Rutishauser and Barry S. Kantrowitz of counsel), for respondents.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Evan Wiederkehr of counsel), for appellants. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Reginald H. Rutishauser and Barry S. Kantrowitz of counsel), for respondents.
In an action, inter alia, to permanently enjoin the defendant United Rockland Stairs, Inc., from trespassing on a certain disputed parcel of real property, and to compel that defendant to remove a certain fence from that property, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Sherwood, J.H.O.), dated January 6, 2010, as, upon a decision of the same court dated December 9, 2009, made after a nonjury trial, is in favor of the defendants and against them, dismissing the complaint and awarding disbursements to the defendants pursuant to CPLR 8301 in the sum of $2,052.28.
ORDERED that the appeal from so much of the judgment as awarded disbursements to the defendants pursuant to CPLR 8301 in the sum of $2,052.28 is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as reviewed; and it is further,
*614 ORDERED that one bill of costs is awarded to the respondents.
On an appeal from a judgment after a nonjury trial, this Court's power to review the evidence is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, giving due regard to the trial court, which had the advantage of assessing the credibility of the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Parry v. Murphy, 79 A.D.3d 713, 913 N.Y.S.2d 285; Sabetfard v. Djavaheri Realty Corp., 40 A.D.3d 838, 835 N.Y.S.2d 723). Here, the Supreme Court's determination to credit the testimony of the defendants' expert surveyor and to dismiss the complaint is supported by the record. Accordingly, there is no basis to disturb the Supreme Court's determination in favor of the defendants.
The appeal from so much of the judgment as awarded disbursements to the defendants pursuant to CPLR 8301 in the sum of $2,052.28 must be dismissed, since the plaintiff failed to move for retaxation of costs before the Supreme Court pursuant to CPLR 8404 ( see Geller v. Farber, 250 A.D.2d 808, 672 N.Y.S.2d 787; Matter of Verga v. Scaduto, 99 A.D.2d 534, 471 N.Y.S.2d 321; Smith v. Incorporated Vil. of Patchogue, 285 App.Div. 1190, 141 N.Y.S.2d 244).