Underhill Venture, LLC v Sarang
2026 NY Slip Op 04976
August 12, 2026
Appellate Division, Second Department
Wan
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Underhill Venture, LLC, appellant,
v
Hansneet Sarang, et al., respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 12, 2026
2025-02245, (Index No. 604830/23)
Valerie Brathwaite Nelson, J.P.
Lillian Wan
Laurence L. Love
Elena Goldberg Velazquez, JJ.
Ezio Scaldaferri, Esq., P.C. Glen Cove, NY, for appellant.
Esagoff Law Group, P.C., Great Neck, NY (Janet Nina Esagoff of counsel), for respondents.
APPEAL by the plaintiff, in an action, inter alia, for declaratory relief, from an order and judgment (one paper) of the Supreme Court (Felice J. Muraca, J.), dated January 22, 2025, and entered in Nassau County. The order and judgment, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 5015(a) to vacate so much of a judgment of the same court entered November 12, 2024, as awarded the plaintiff disbursements for printing expenses in the sum of $6,135.34 and disbursements for fees incurred to cancel a certain notice of pendency in the sum of $300.
Wan, J.
[*1]
OPINION & ORDER
This appeal presents this Court with the opportunity to consider whether, under CPLR 8301(a)(6), a party to whom costs are awarded on an appeal is entitled to tax, as a necessary disbursement, those reasonable expenses incurred by that party in connection with the assembly and submission of a digital record and briefs on the appeal. We answer this question in the affirmative.
Factual & Procedural Background
The following facts are taken from this Court's decision and order on a prior appeal (see Underhill Venture, LLC v Sarang, 231 AD3d 996). The plaintiff entered into a residential contract of sale (hereinafter the contract) to build a house on certain land located in Oyster Bay and to sell the land and the house to the defendants (see id. at 997). Alleging that the defendants defaulted on their obligation to pay for certain upgrades (or "extras") to the house that they requested, the plaintiff commenced this action to declare the contract null and void and to retain the defendants' down payment (see id.). The defendants counterclaimed for damages and filed a notice of pendency against the property (see id.).
The plaintiff moved to cancel the notice of pendency, for an award of costs, and to impose sanctions upon the defendants for filing the notice of pendency (see id.). In an order dated September 21, 2023, the Supreme Court, inter alia, denied the motion (see id.). The plaintiff then moved, among other things, for leave to renew and reargue its prior motion (see id.). In an order entered December 18, 2023, the court, inter alia, denied the plaintiff's motion, among other things, for leave to renew and reargue its prior motion (see id.).
The plaintiff appealed from both orders, and in a decision and order dated October 16, 2024, this Court determined, inter alia, that "the Supreme Court erred in denying that branch of the plaintiff's motion which was to cancel the notice of pendency," since "the parties agreed in a [*2]rider to the contract that 'the right to file a Lis Pendens in any action is hereby waived irrevocably'" (id.). This Court further determined that "[c]ontrary to the plaintiff's contention, however, the plaintiff is not entitled to an award of costs pursuant to CPLR 6514(c) because the notice of pendency was not cancelled pursuant to CPLR 6514(a) or (b)" (id. at 998, citing Delidimitropoulos v Karantinidis, 142 AD3d 1038, 1039-1040). This Court also concluded that "[u]nder the circumstances of [the prior appeal], sanctions are not warranted pursuant to 22 NYCRR 130-1.1" (id.).
Based upon the foregoing, this Court, among other things, modified the order dated September 21, 2023, "by deleting the provision thereof denying that branch of the plaintiff's motion which was to cancel the defendants' notice of pendency, and substituting therefor a provision granting that branch of the motion" (id. at 996). This Court also "[o]rdered that one bill of costs is awarded to the plaintiff" (id. at 997).
After this Court issued the decision and order on the prior appeal, the plaintiff submitted a proposed judgment with a bill of costs, wherein the plaintiff requested costs pursuant to CPLR 8203(a) in the sum of $250, disbursements for printing expenses in the sum of $6,135.54, and disbursements for fees incurred to cancel the notice of pendency in the sum of $300. On November 12, 2024, the Supreme Court entered a judgment in favor of the plaintiff and against the defendants in the sum of $6,685.54, which included all costs and disbursements sought by the plaintiff.
Thereafter, the defendants moved, inter alia, pursuant to CPLR 5015(a) to vacate so much of the judgment as awarded the plaintiff disbursements for printing expenses in the sum of $6,135.34 and disbursements for fees incurred to cancel the notice of pendency in the sum of $300. The defendants argued that the plaintiff failed to establish its entitlement to printing expenses since it did not explain why the filing of hard copies of appellate papers was necessary. The defendants also argued that the plaintiff "electively opted" to use an appellate printer and that the defendants should not be burdened with such costs.
In opposition, the plaintiff acknowledged that it did not file hard copies of the briefs and record on the prior appeal. Instead, according to the plaintiff's counsel, Printing House Press, the appellate printing company utilized by the plaintiff in connection with the preparation and submission of the record and briefs on the prior appeal, only invoiced the plaintiff for "electronic bookmarks," "electronic links," "digital files conversion(s)," and "uploads." The plaintiff argued that the "mere fact that documents can be e-filed did not prohibit the use of an appellate printer that specializes in the intricacies of preparation and filing of the record on appeal and briefs," since the "Appellate Division requires that briefs and records contain electronic hyperlinks" and that "costs from a printer have been consistently awarded after the Second Department began mandating e-filing" (emphasis omitted). The plaintiff argued that "it is commonplace, and economical, to use a printer."
In an order dated January 22, 2025, the Supreme Court, among other things, granted those branches of the defendants' motion which were pursuant to pursuant to CPLR 5015(a) to vacate so much of the judgment as awarded the plaintiff disbursements for printing expenses in the sum of $6,135.34 and disbursements for fees incurred to cancel the notice of pendency in the sum of $300. The Supreme Court determined, inter alia, that this Court's award to the plaintiff of "one bill of costs" did not include an award of disbursements and that the plaintiff was only entitled to recover costs pursuant to CPLR 8203(a) in the sum of $250.
The plaintiff appeals.
Analysis
Initially, the plaintiff contends that the Supreme Court incorrectly determined that this Court's award of "one bill of costs" in connection with the prior appeal did not include an award of disbursements. CPLR 8301(a) states that "[a] party to whom costs are awarded in an action or on appeal is entitled to tax his [or her] necessary disbursements." The Practice Rules of the Appellate Division provide that "[c]osts upon an appeal under CPLR 8107 shall be allowed only as directed by the court in each case. In the absence of a contrary direction, the award by the court of costs in any matter shall be deemed to include disbursements in accordance with CPLR 8301(a)" (22 NYCRR 1250.16[b]; see O'Brien v Town of Huntington, 131 AD3d 685, 686). Here, this Court's decision and order on the prior appeal directed an award of "one bill of costs" to the plaintiff, with no contrary direction. Therefore, the Supreme Court incorrectly determined that this Court's award to the plaintiff of "one bill of costs" on the prior appeal did not include an award of disbursements [*3](see O'Brien v Town of Huntington, 131 AD3d at 686).
Next, the plaintiff contends that the expenses associated with the preparation of the digital record and briefs filed in connection with the prior appeal constitute an enumerated disbursement under CPLR 8301(a)(6). "Recovery of costs and disbursements in an action and on appeal is dependent on the statutory authorization set forth in CPLR 8301(a)" (North Oyster Bay Baymen's Assn. v Town of Oyster Bay, 150 AD3d 865, 868). Pursuant to CPLR 8301(a), a party to whom costs are awarded on appeal is entitled to tax his or her necessary disbursements for, among other things, the "reasonable expenses of printing the papers for a hearing, when required" (id. § 8301[a][6]; see Thandi v Otsego Mut. Fire Ins. Co., 237 AD3d 774, 775; Shapiro v Aetna Cas. & Sur. Co., 73 AD2d 616, 616; Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 80 Misc 2d 944, 944 [Civ Ct, NY County]).
Although "[i]t has always been the policy of this court to allow printing fees as taxable disbursements, where such fees are reasonable and necessary within the context of the litigation" (Shapiro v Aetna Cas. & Sur. Co., 73 AD2d at 616; see Derr v Fleming, 108 AD3d 854, 855), the issue of whether the expenses associated with the preparation and filing of a digital copy of a record and brief constitute an "expense[ ] of printing" within the meaning of CPLR 8301(a)(6) appears to be a matter of first impression for this Court.
Effective September 17, 2018, under the Practice Rules of the Appellate Division, when an appellant perfects an appeal using the full record method, the appellant must file with the clerk one digital copy of the record and briefs (see 22 NYCRR 1250.9[a][1], [c][1], [d]). On appeal, the parties do not dispute that the plaintiff used the full record method to perfect its prior appeal, that the plaintiff only filed a digital copy of its record and briefs, and that this Court did not require the plaintiff to file hard copy submissions of the record and its briefs.
Under this Court's Local Rules of Practice, the "digital copies of the records, appendices and briefs required to be filed with the Court pursuant to [22 NYCRR 1250.9(a), (c), and (d)] shall comply with the technical requirements and guideline for electronically filed documents (22 NYCRR Part 1245, Appendix A), and shall be filed by uploading through a digital portal" (22 NYCRR 670.9[a]). Pursuant to the "Formatting Requirements for Documents Electronically Filed" of the Electronic Filing Rules of the Appellate Division, digital documents electronically filed pursuant to 22 NYCRR 1245 shall "comply with text searchable PDF archival format," "contain bookmarks linking the tables of contents of briefs and records to the corresponding page of the document," and "be scanned at a resolution sufficient to ensure legibility," among other requirements (id. § 1245, Attachment A[1][b], [c], and [e]).
Given the foregoing sections of the Practice Rules of the Appellate Division, the Electronic Filing Rules of the Appellate Division, and this Court's Local Rules of Practice, we hold that the plaintiff's use of an appellate printer to prepare "electronic bookmarks," "electronic links," "digital file conversion(s)," and "uploads" for its prior appeal constituted "reasonable expenses of printing the papers for a hearing, when required," within the meaning of CPLR 8301(a)(6) and was "reasonable and necessary within the context of the litigation" (Shapiro v Aetna Cas. & Sur. Co., 73 AD2d at 616; see CPLR 8301[a][6], [13]; 22 NYCRR 1250.9[a][1]; [c][1]; [d]; 670.9[a]; 1245, Attachment A; Society of N.Y. Hosp. v Mogensen, 81 Misc 2d 1089, 1090 ["inasmuch as appellant was required to reproduce the record by an authorized method to perfect its appeal (22 NYCRR 640.2[a]), the court below should have allowed as a reasonable and necessary disbursement an amount equal to the cost of an alternative method of reproduction"]; Madigan v Berkeley Capital LLC, 80 Misc 3d 1202[A], 2023 NY Slip Op 50879[U], *14 [Sup Ct, Kings County] [awarding printing costs pursuant to CPLR 8301(a)(6) where counsel affirmed that "(o)nce the Appellate Division authorized the filing of the second supplemental appendix, we provided the documents to the appellate printer, Counsel Press"]; cf. Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 80 Misc 2d at 944).
Accordingly, the Supreme Court improperly vacated so much of the judgment as awarded the plaintiff disbursements for printing expenses pursuant to CPLR 8301(a)(6) (see Shapiro v Aetna Cas. & Sur. Co., 73 AD2d at 616; Society of N.Y. Hosp. v Mogensen, 81 Misc 2d at 1090).
Further, the plaintiff contends that the Supreme Court erred in vacating its disbursements for fees incurred to cancel the notice of pendency in the sum of $300. The plaintiff contends that, as a result of this Court's determination on the prior appeal that the notice of pendency be vacated, the plaintiff was compelled to pay a $300 fee to the Nassau County Clerk pursuant to Section 1 of Nassau County Local Law No. 8-2015 and that such fee was a necessary expense [*4]incurred by order of this Court. Thus, the plaintiff contends it was entitled to this disbursement pursuant to CPLR 8301(a)(13).
CPLR 8301(a)(13) entitles a party to tax its necessary disbursements for "such other reasonable and necessary expenses as are taxable according to the course and practice of the court, by express provision of law or by order of the court." Additionally, when a county clerk renders "[s]ervices in connection with papers or instruments relating to real property and not filed under the uniform commercial code," he or she is entitled to the fees specified in CPLR 8021 (id. § 8021[a]). Under CPLR 8021(a)(10), a county clerk may charge, "[f]or filing or recording a notice of pendency of action or a notice of attachment against real property . . . in counties within the city of New York, thirty-five dollars, and in all other counties, fifteen dollars, but no fee shall be charged for filing or recording a notice or order continuing or cancelling same" (emphasis added).
However, "fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services . . . except that such fees do not include the block fees as set out in the Nassau county administrative code" (id. § 8019[a] [emphasis added]). This exception concerning the Nassau County Administrative Code has been part of CPLR 8019(a) since 1963 (compare L 1962, ch 308 [the codification of the CPLR], with L 1963, ch 532, § 55 [amendment of CPLR 8019(a) to include, inter alia, the Nassau County exception]). As cited by the plaintiff, Nassau County Administrative Code § 19-17.0(a), as amended by Local Law No. 8-2015, provides that "[a]ny person presenting an instrument, including but not limited to deeds, mortgages, and any other such instruments, to the County Clerk for recording and indexing or for the satisfaction or cancellation of a lien or statutory notice of a lien or claim on land and the indexing of such satisfaction or cancellation, shall pay to such clerk, in addition to such other fees required by law, the sum of three hundred dollars for each block under which such instrument is required to be indexed." Here, then, based upon the plain language of Nassau County Administrative Code § 19-17.0(a), which institutes a "block fee" for the cancellation of a notice of pendency, and the exception for such block fees as set forth in CPLR 8019(a), the Supreme Court incorrectly determined that so much of the judgment as awarded $300 in disbursements for fees incurred to cancel the notice of pendency must be vacated on the ground that CPLR 8021(a)(10) disallowed such fees.
Where, as here, the recovery of fees for the cancellation of a notice of pendency is not enumerated under CPLR 8301(a), "[t]he question of the allowance of unenumerated items is thus directed to the courts and must depend on the particular circumstances involved as to each item alleged to be taxable" (John Deere Co. of Baltimore v Cerone Equip. Co., 33 AD2d 257, 258, affd 27 NY2d 926; see Matter of Allied Chem. Corp. v Town of Geddes, 87 Misc 2d 704, 708 [Sup Ct, Onondaga County] [the authorization to award expenses under CPLR 8301(a)(13) "invokes the discretion of the court"]).
Here, on the prior appeal, this Court determined that the notice of pendency should have been canceled since "the parties agreed in a rider to the contract that 'the right to file a Lis Pendens in any action is hereby waived irrevocably'" (Underhill Venture, LLC v Sarang, 231 AD3d at 997). However, this Court also determined that the plaintiff was not entitled to an award of costs based upon the cancellation of the notice of pendency because, among other things, the notice of pendency was not canceled pursuant to CPLR 6514(b) (see Underhill Venture, LLC v Sarang, 231 AD3d at 998). CPLR 6514(b), "Discretionary cancellation," states that "[t]he court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith." This Court further determined that, under the circumstances of the prior appeal, sanctions against the defendant were not warranted pursuant to 22 NYCRR 130-1.1 (see Underhill Venture, LLC v Sarang, 231 AD3d at 998). Under these circumstances, in which this Court appears to have rejected the plaintiff's contentions that the defendants did not file the notice of pendency in good faith and that the defendants' conduct warranted sanctions, the plaintiff was not entitled to disbursements incurred in order to cancel the notice of pendency (see CPLR 8301[a][13]; Elliot v E.T. Indus., 88 Misc 2d 942, 948 [Sup Ct, Saratoga County]; cf. Pross v Jadam Equities, 171 AD2d 579; John Deere Co. of Baltimore v Cerone Equip. Co., 33 AD2d at 258-259).
Accordingly, the order and judgment is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 5015(a) to vacate so much of the judgment as awarded the plaintiff disbursements for printing expenses in the sum of $6,135.54, and substituting therefor a provision denying that branch of the motion; as so modified, the order and judgment is affirmed insofar as appealed from, and the matter [*5]is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment in accordance herewith.
BRATHWAITE NELSON, J.P., LOVE and GOLDBERG VELAZQUEZ, JJ., concur.
ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 5015(a) to vacate so much of the judgment entered November 12, 2024, as awarded the plaintiff disbursements for printing expenses in the sum of $6,135.54, and substituting therefor a provision denying that branch of the motion; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment in accordance herewith.
ENTER:
Darrell M. Joseph
Clerk of the Court