Tiano v. Yaple

56 Misc. 2d 44, 287 N.Y.S.2d 778, 1968 N.Y. Misc. LEXIS 1860

Opinion

Lawrence H. Cooke, J.

In this action in which the complaint sets forth a cause of action for the recovery of damages for personal injuries sustained by the infant plaintiff and a derivative cause of action for damages sustained by her father, plaintiffs move to set aside the judgment for costs entered by defendant against plaintiffs.

Under CPLR 1205, costs may not be taxed against either the infant or his representative unless a court so orders; but, if the representative joins a claim in his individual capacity with the claim of the infant whom he represents, said section has no application to the resulting judgment insofar as it relates to the representative’s individual claim and costs thereon may be taxed against him without a court order (Giebner v. Retz, 253 App. Div. 752; Letson v. De Long, 11 Misc 2d 655; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 1205.02; 19 Carmody-Wait, New York Practice, pp. 685-686).

Motion granted to the extent of modifying the judgment by striking the provision therein providing for costs against the infant plaintiff and her representative as such representative, but said motion is denied insofar as it seeks to strike or vacate the judgment for costs against plaintiff Charles Tiano in his individual capacity.