Arkin v. Sunshine

43 Misc. 2d 849, 252 N.Y.S.2d 492, 1964 N.Y. Misc. LEXIS 1770

• Court: New York Supreme Court
• Decided: May 14, 1964
• Status: Published

Opinion

Thomas C. Chimera, J.

This is a motion for an order fixing costs on an appeal taken by defendant (Anne Fogarty) to the Appellate Division which was granted in her favor, with costs and disbursements. Plaintiffs oppose the grant of an item for costs of printing the record on appeal because the same was reproduced by defendant’s attorneys by use of a Xerox machine maintained in their office. Plaintiffs’ contention that there is no authority for allowing recovery for such an expense is rejected (CPLR 5529, subd. [a]; CPLR 8301, subd. [a], pars. 6, 12; Rules App. Div., 1st Dept., part 1, rule XIV).

However, since the reproductions were made by the moving party’s attorneys, there are no invoices or other proofs offered to substantiate the costs. Plaintiffs’ attorneys’ bare assertion that 1 ‘ the cost per page for this process is ten cents ’ ’ will not suffice. It is to be assumed that the “ per unit ” cost of Xerox reproductions fluctuates and is based on many variables, including machine rental, paper costs, volume of work, labor and overhead. The court is not yet satisfied that all of the variables involved should properly be included as costs taxable in this action. It would appear that satisfactory proof on the question would best be obtained from an expert in Xerography, perferably the Xerox Corporation itself. Only a detailed schedule, showing a breakdown of costs of all applicable variables, will enable the court to properly evaluate the expenses claimed. The motion therefore is denied, without prejudice to plaintiffs’ bringing a new motion based on sufficient proofs, either as suggested herein or otherwise.