

O'Brien v Town of Huntington (2015 NY Slip Op 06664)





O'Brien v Town of Huntington


2015 NY Slip Op 06664


Decided on August 26, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 26, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
BETSY BARROS, JJ.


2013-05984
 (Index No. 15166/81)

[*1]Thomas E. O'Brien, et al., respondents, 
vTown of Huntington, et al., appellants.


Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Peter Sullivan and Todd Steckler of counsel), for appellants.
Farrell Fritz, P.C., Uniondale, N.Y. (John P. McEntee of counsel), for respondents
Thomas E. O'Brien, Evelyn E. O'Connell, Estate of Gladys T. Russell, Estate of Dorothy Wortman, Dottie Hadler, Barbara Goodman, Donald Cantrell, Anita C. Dorsey, George Gershel, Jr., Sally Title, and the heirs and distributees of Georgiana Walters.
Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Theodore D. Sklar of counsel), for respondents JP Morgan Chase Bank, N.A., Alan Dolinsky, Charles H.C. Gerard, Jr., Emily M. Gerard, Christopher C. Gerard, Daniel B. Gerard, Alison G. Potter, John P. Campbell, Sumner Gerard, Jr., Sumner Gerard III, and Henry P. Renard.

DECISION & ORDER
In an action, inter alia, to compel the determination of claims to nine parcels of real property pursuant to RPAPL article 15, the defendants appeal from so much of a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered December 5, 2012, as, upon an order of the same court dated December 27, 2011, denying their motion, inter alia, to settle their proposed judgment and pursuant to CPLR 8301 for a disbursement for the cost of obtaining a stenographic copy of the trial testimony and signing the plaintiffs' proposed counter-judgment, declared them to be the owners of the nine parcels as described by the plaintiffs in the proposed counter-judgment and failed to award them the costs of procuring the trial transcript.
ORDERED that the judgment is modified, on the law, by adding a provision thereto awarding the defendants the costs of procuring the trial transcript in the sum of $9,862.65 as a taxable disbursement; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, that branch of the defendants' motion which was for a disbursement for the cost of obtaining a stenographic copy of the trial testimony is granted to the extent of awarding the defendants the sum of $9,862.65 and is otherwise denied, and the order is modified accordingly.
The underlying facts are described in this Court's opinion and order on a prior appeal (see O'Brien v Town of Huntington, 66 AD3d 160). After this Court issued that opinion and order, the defendants submitted a proposed judgement, wherein they included new descriptions of the nine parcels of property at issue in this action. Contrary to the defendants' contentions, the Supreme Court properly rejected their proffered descriptions on the ground that they were based on evidence not presented at trial.
This Court's opinion and order also included a provision awarding the defendants one bill of costs (see O'Brien v Town of Huntington, 66 AD3d at 169). The rules of this Court provide that "[i]n the absence of a contrary direction, the award by this court of costs upon any cause shall be deemed to include disbursements" (22 NYCRR 670.21[b]). The defendants' proposed judgment included a provision taxing the cost of obtaining a stenographic copy of the trial testimony as a disbursement pursuant to CPLR 8301(a)(13). Under the circumstances of this case, the Supreme Court should not have rejected the defendants' request to tax the cost of obtaining the trial transcript as a disbursement since the defendants submitted an attorney affirmation, wherein counsel stated that while the transcripts were used during the trial, they were procured with the intent of preparing a record on appeal, and detailed his reasons for believing that an appeal would be necessary (see Shapiro v Aetna Cas. and Sur. Co., 73 AD2d 616; Pratt v Clark, 124 App Div 248; Chelrob, Inc. v Barrett, 180 Misc 314, 315 [Sup Ct, Nassau County]; cf. Long Is. Contr. & Supply Co. v City of New York, 142 App Div 1, 2). Therefore, the defendants are permitted to tax $9,862.65 of the costs they expended in procuring the transcripts (see 22 NYCRR 108.2[b][1][ii]).
We have not considered the defendants' contention that the Supreme Court improvidently exercised its discretion in denying their request for an additional award pursuant to CPLR 8303(2), as it is beyond the scope of their limited notice of appeal from the judgment entered December 5, 2012 (see Hatem v Hatem, 83 AD3d 663, 664; Paterno v Carroll, 75 AD3d 625, 629; City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516, 516-517).
DILLON, J.P., DICKERSON, CHAMBERS and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




