Lipton v. Mitchell , 546 N.Y.S.2d 799 ( 1989 )

OPINION OF THE COURT

Seymour Schwartz, J.

Defendants move for a review and determination of the appropriate bill of costs to be entered in this litigation.

At trial plaintiff obtained a judgment for $6,750. On appeal, the Appellate Term, First Department, reversed and dismissed the complaint, with $30 costs. When defendants sought to have a bill of costs and notice of taxation entered, objections were interposed by plaintiff and the clerk suggested the parties seek a judicial determination.

The parties agree that the Appellate Term costs of $30 and the disbursement for Sheriff’s fee on execution, $22.50, are proper.

At issue are the disbursements for the record on appeal, stenographer’s fees, examination before trial of plaintiff and the undertaking to stay enforcement. Also at issue are costs after trial and requested motion costs.

CPLR 8301 provides that a party to whom costs are awarded on appeal is entitled to tax necessary disbursements including printing the papers for a hearing when required. (CPLR 8301 [a] [6].) CPLR 5529 (a) (1) provides that briefs and appendices may be reproduced by offset printing and section 640.2 of the rules of practice of the Supreme Court, Appellate Term, First Department (22 NYCRR 640.2), directs that appeals be heard on the return and five copies of the record and briefs or return, brief and appendices reproduced by any other method authorized by CPLR 5529. The photo offset disbursements of $2,167.15 for the record and briefs were necessarily incurred and are taxable.

Defendant is entitled to recover disbursements for stenographic fees for a transcript of the trial at the rate of 30 cents a folio (CCA 1914). There were 322 pages and at 2Vi folios a page, the disbursement is $241.50.

Defendant is entitled to recover the disbursement of $240 for securing an undertaking to stay enforcement of a judgment subsequently reversed. (CPLR 8301 [a] [11].)

Defendant is entitled to recover the disbursement of $250 for the examination before trial of plaintiff. (CPLR 8301 [a] [9].) Because a trial was held, defendant is entitled to costs of $300. (CCA 1901.)

No motion costs are awarded since the clerk suggested the motion to secure a judicial determination of the issue and the motion was not unnecessary or frivolous. Pursuant to CCA 1902, costs can be disallowed by the court if found inequitable. Here, however, since defendant was forced to engage in an appeal to secure vindication and no undue prejudice to plaintiff has been demonstrated, plaintiff’s application for disallowance of costs is denied.

The clerk may proceed to enter costs of $330 and disbursements of $2,921.15.