Twelve Lions Realty Co. v. 684 Owners Corp.

122 A.D.2d 629, 505 N.Y.S.2d 565, 1986 N.Y. App. Div. LEXIS 59240

Opinion

— Order of the Supreme Court, New York County (Seymour Schwartz, J.), entered June 11, 1985, and judgment entered thereon on July 9, 1985, which dismissed the foreclosure action brought by plaintiff-appellant Twelve Lions Realty Co., and awarded costs and discretionary costs to defendants-respondents-appellants in connection with the removal of the receiver of its property and assets and the cancellation of the notice of pendency arising from the foreclosure action, and which denied defendants-respondents-appellants’ request for an award of attorney’s fees, unanimously modified, on the law, the facts and in the exercise of discretion, to reduce the award of discretionary costs to $300 and to vácate the award of costs for cancellation of the notice of pendency, and except as modified, affirmed, without costs or disbursements.

An examination of the record indicates that the additional discretionary award of costs to defendant pursuant to CPLR 8303 (a) (1) should be limited to $300. This is particularly true since we made an identical reduction in the award of discretionary costs in Twelve Lions Realty Co. v 684 Owners Corp. (109 AD2d 603), where the issues were comparable in nature and difficulty.

We note in addition that the award of $3,950.11 to defendant, representing expenses incurred by the receiver and deducted from the sums collected by him, is not a cost and expense "occasioned by the filing and cancellation” of a notice of pendency and was thus improperly allowed under CPLR 6514 (c).

The other points raised by appellants and cross-appellants have been considered and found to be without merit. Concur— Murphy, P. J., Kupferman, Ross, Kassal and Rosenberger, JJ.