        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

693
CA 10-02317
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


GLACIAL AGGREGATES LLC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF YORKSHIRE, DEFENDANT-APPELLANT.


JOHN J. FLAHERTY, TOWN ATTORNEY, WILLIAMSVILLE, DAVID J. SEEGER,
BUFFALO, SPECIAL COUNSEL FOR DEFENDANT-APPELLANT.

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (SEAN J. MACKENZIE OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Cattaraugus County
(Larry M. Himelein, A.J.), entered June 15, 2010. The judgment
awarded plaintiff attorneys’ fees and disbursements in the amount of
$69,822.89.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from a judgment awarding
plaintiff, inter alia, attorneys’ fees pursuant to 42 USC § 1988 (b)
as the prevailing party on the cause of action seeking damages
pursuant to 42 USC § 1983. We affirm. According to plaintiff,
defendant violated its due process rights pursuant to the Fourteenth
Amendment of the United States Constitution by depriving plaintiff of
its vested right to mine the property in question. Following a jury
trial, plaintiff was awarded damages. This Court reversed the
judgment, granted defendant’s motion for a directed verdict and
dismissed the 42 USC § 1983 cause of action (Glacial Aggregates LLC v
Town of Yorkshire, 57 AD3d 1362, revd 14 NY3d 127). The Court of
Appeals, however, determined that plaintiff had established a vested
right to mine the property, and it therefore reversed our order and
remitted the matter to this Court for consideration of the issues
raised but not determined on the appeal to this Court (Glacial
Aggregates LLC v Town of Yorkshire, 14 NY3d 127, rearg denied 14 NY3d
920). Upon remittitur from the Court of Appeals, we rejected
defendant’s remaining contentions and affirmed the judgment (Glacial
Aggregates LLC v Town of Yorkshire, 72 AD3d 1644, appeal dismissed 16
NY3d 760). Thus, contrary to defendant’s contention, plaintiff is a
prevailing party pursuant to 42 USC § 1988 (see generally Matter of
Johnson v Blum, 58 NY2d 454, 457-459).

     Contrary to the further contention of defendant, we conclude that
                                 -2-                           693
                                                         CA 10-02317

plaintiff’s motion for attorneys’ fees pursuant to 42 USC § 1988 was
timely inasmuch as it was filed approximately 2½ months after the
judgment on the verdict was filed and approximately two months after
Supreme Court denied defendant’s motion to set aside the verdict (see
generally Felder v Foster, 86 AD2d 766).

     We note that plaintiff filed the judgment for, inter alia,
attorneys’ fees with the Cattaraugus County Clerk more than two years
following the court’s decision on the motion (see 22 NYCRR 202.48
[a]). We nevertheless further conclude that plaintiff did not abandon
its motion seeking attorneys’ fees. We take judicial notice of the
fact that the appeal process continued until approximately six weeks
before the judgment was filed (Glacial Aggregates LLC, 72 AD3d 1644),
and we note that plaintiff was not entitled to the fees as a
prevailing party pursuant to 42 USC § 1988 until that process was
concluded. We therefore conclude that plaintiff had good cause for
its delay in filing the judgment (see 22 NYCRR 202.48 [b]; see
generally Farkas v Farkas, 11 NY3d 300, 308-309). In any event, we
note that “the matter involves . . . [a] simple judgment for a sum of
money [that] speaks for itself . . . [and was properly] ‘entered by
the [County C]lerk without prior submission to the court’ ” (Funk v
Barry, 89 NY2d 364, 367), and there is no time limit to file a
judgment for a sum of money (see Farkas, 11 NY3d at 309).

     We reject defendant’s contention that the award of attorneys’
fees should be reduced. The amount of reasonable attorneys’ fees
awarded pursuant to 42 USC § 1988 lies within the sound discretion of
the trial court and will not be disturbed absent an abuse of that
discretion (see Deep v Clinton Cent. School Dist., 48 AD3d 1125,
1126), and that is not the case here.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
