Opinion
February 29, 1968
Parker, Chapin Flattau for plaintiffs.
Robert D. Stone and Elizabeth M. Eastman for University of the State of New York and others, defendants.
Kimmelman, Perkiss Sexter for intervenors-defendants.
Harold Kohn for New York State Optometric Association, amicus curiae. Sipser, Weinstock Weinmann for United Optical Workers Union, Local 408, IUE, AFL-CIO, amicus curiae. Scaduto, Barrata Solleder for New York State Optical Retailers Association, amicus curiae. Javits, Trubin, Sillcocks, Edelman Purcell for Colston Optical of New York, Inc., amicus curiae.
Plaintiffs have filed a proposed judgment and bill of costs and move pursuant to CPLR 8303 (subd. [a], par. 2) for an order granting them an additional allowance of $3,000 to be taxed as costs on the ground that this case was difficult or extraordinary.
The extraordinary nature of this case, its obvious difficulties, and the amount of time and expense necessarily expended in its preparation, apparent from a reading of the voluminous record, convince me that plaintiffs are entitled to an additional allowance. (See 8 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 8303.02.)
In addition I find that the amount paid the official court stenographer is a proper disbursement under CPLR 8301 (subd. [a], par. 12) which permits recovery of "such other reasonable and necessary expenses as are taxable according to the course and practice of the court, by express provision of law or by order of the court." In respect to this new practice provision the above-quoted authority in paragraph 8301.01 states "This language, which is designed to instill a touch of judicial discretion into the subject and, of necessity, must be imprecise, encourages a litigant who is entitled to tax his disbursements to exercise his ingenuity in bringing items of cost within its scope in order to shift the financial burden of the law suit to his adversary. * * * The possibility of his success is enhanced by the fact that the propriety of taxing many items never has been litigated. Sound public policy favors expansive reading of this new provision. Especially since attorneys' fees expended by the successful party are not taxable (see par. 8301.04), every effort should be made to make the taxing party whole by permitting recovery of other expenses of the litigation." I agree with this new approach.
Motion granted and judgment signed.