Childs v. Cobado

302 A.D.2d 914, 755 N.Y.S.2d 351, 2003 N.Y. App. Div. LEXIS 971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2003
• Status: Published

Opinion

Appeal from a judgment of Supreme Court, Cattaraugus County (Ward, J.), entered December 3, 2001, which, inter alia, settled title of the subject premises in favor of plaintiff upon a decision of the court.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the damages award by the sum of $1,925 and the interest thereon and by vacating the award of attorneys’ fees and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court properly found that plaintiff is vested with legal title to the subject premises and that defendants failed to establish title by adverse possession. The court erred, however, in awarding plaintiff damages for expenses incurred in procuring the expert services and testimony of one surveyor and the expert services of another surveyor. Expenses incurred for the retention and testimony of an expert are not an element of compensatory damages (see Miss Susan v Enterprise & Century Undergarment Co., 270 App Div 747, 750, affd 297 NY 512, rearg denied 297 NY 884; see generally 36 NY Jur 2d, Damages § 91). We further conclude that the court abused its discretion in directing that defendants pay approximately one half of plaintiffs attorneys’ fees as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1. In our view, defendants’ conduct in defending the action was not “completely without merit in law” (130-1.1 [c] [1]; see Amherst Magnetic Imaging Assoc. v Community Blue, HMO of Blue Cross of W. N.Y., 286 AD2d 896, 898, lv denied 97 NY2d 612). We therefore modify the judgment by reducing the damages award by the sum of $1,925 and the interest thereon and by vacating the award of attorneys’ fees. Present — Pigott, Jr., P.J., Wisner, Hurlbutt, Scudder and Lawton, JJ.