Danser v. Carrols Corp.

11 A.D.3d 940, 782 N.Y.S.2d 212, 2004 N.Y. App. Div. LEXIS 11255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 2004
• Status: Published

Opinion

Appeal from an order and judgment (one paper) of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered May 14, 2003. The order and judgment awarded costs and disbursements in the amount of $139.97 plus attorneys’ fees in the amount of $6,710 to defendant Carrols Corporation and Carrols Corporation, doing business as Burger King, against plaintiffs.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse or improvidently exercise its discretion in granting that part of the motion of Carrols Corporation and Carrols Corporation, doing business as Burger King (defendants), seeking an award of expenses, including attorneys’ fees, incurred as a result of their having to seek to compel plaintiff Helen Danser to provide updated medical authorizations and to attend a physical examination (see Matter of Glazer, 134 AD2d 875 [1987], lv dismissed in part and denied in part 72 NY2d 828 [1988]; see generally CPLR 3126; Kimmel v State of New York, 267 AD2d 1079, 1080-1081 [1999]). The amount of attorneys’ fees awarded is not arbitrary but, rather, is based on a showing of the time expended by defendants’ attorneys in connection with defendants’ motion (see Sage Realty Corp. v Proskauer Rose, 288 AD2d 14, 15 [2001], lv denied 97 NY2d 608 [2002]; cf. Fontanella v Fontanella, 167 AD2d 185 [1990]). Present—Pine, J.P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.