Savago v. Ulster County Board of Elections

234 A.D.2d 777, 651 N.Y.S.2d 223, 1996 N.Y. App. Div. LEXIS 12495

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1996
• Status: Published

Opinion

—Yesawich Jr., J.

Appeal from an order of the Supreme Court (Torraca, J.), entered April 26,1996 in Ulster County, which denied petitioner’s application pursuant to CPLR 8404 to disallow a taxation of costs imposed against him.

Previously, this Court reversed Supreme Court’s decision in favor of petitioner (220 AD2d 926) and, thereafter, costs were exacted against him pursuant to CPLR 8101, 8201 and 8401. Petitioner then moved to disallow the imposition of costs based, inter alia, on the fact that this Court’s reversal stated that it was "without costs”. Supreme Court denied the motion and petitioner appeals.

We affirm. The subject of the words "without costs” in our prior decision was the appeal to this Court and not the court costs attributable to the proceedings in Supreme Court (see generally, Di Tomasso v Loverro, 276 NY 681; Sweeney v Murphy, 76 Mise 2d 502). CPLR 8107 specifically permits this Court to make an independent determination with respect to the taxation of costs on an appeal, regardless of whether costs are awarded at the trial level as provided by CPLR 8101.

It is true that Supreme Court, upon judicial review (see, CPLR 8404), could have disallowed the items objected to by petitioner. However, we reject petitioner’s claim that the court should have done so in this case. Neither this Court’s failure to award costs on appeal, nor the fact that this is an election case, warrants a finding that Supreme Court erred in refusing a request to disallow costs in that court. Petitioner’s remaining contentions also lack merit.

Mikoll, J. P., Casey, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.