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A Closer Look at Costs on Appeal

By Thomas R. Newman and Steven J. Ahmuty Jr.
September 5, 2023
New York Law Journal

A Closer Look at Costs on Appeal

By Thomas R. Newman and Steven J. Ahmuty Jr.
September 5, 2023
New York Law Journal

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A prevailing party’s right to recover costs in an action exists only by virtue of statutory authority. See Steinberg v. Mealey, 263 App Div 479, 481 [3d Dept 1942]. At common law neither costs nor disbursements were allowed to the prevailing party. Common law courts have no inherent power to award costs and they were not included in the judgment. Their allowance has always been a creature of and regulated by statute. See Equitable Life Assurance Society v. Hughes, 125 NY 106, 108 [1890]. In the case of appeals, the applicable statutes are CPLR §§8107, 8203, 8204 and 8301.

“Statutory costs are a matter of right … in the nature of incidental damages allowed to indemnify a party against the expense of successfully asserting [or defending] his rights in court.” See Bernier v. Household Finance, 183 Misc 742, 745, 51 NYS2d 151 [Sup. Ct. NY Co., 1944]. They are not awarded “as a gratuity or emolument for inconvenience sustained, but constitute compensation for expense ordinarily incurred in the action.” See Munch Brewery v. Grief, 256 AppDiv 1075, 11 NYS2d 126, 127 [2d Dept 1939]. Neither are they “imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them.” See Hayman v. Morris, 37 NYS2d 884, 891 [Sup. Ct. NY Co., 1942].

It has been written that there is “one panacea which heals every sore in litigation and that is costs.” See Cropper v. Smith, 28 ChD 700, 711 [1884]. Unfortunately, the learned justice’s remark can no longer be considered accurate in the context of present day appellate litigation.

In most instances, the single largest expense of successfully asserting or defending one’s rights on appeal is attorney fees. And they are not ordinarily recoverable as costs. Under our legal system, attorney fees are merely incidents of litigation not recoverable from one’s adversary in the absence of a contractual obligation or specific statutory authorization. City of Buffalo v. J.W. Clement, 28 NY2d 241, 262-263 [1971].

The governing statute, CPLR §8107, titled “Costs on appeal,” provides: “The party in whose favor an appeal is decided in whole or in part is entitled to costs upon the appeal, whether or not he is entitled to costs in the action, unless otherwise provided by statute, rule or order of the appellate court. Where a new trial is directed upon appeal, costs upon the appeal may be awarded absolutely or to abide the event.”

Unless a lesser amount is awarded, the amount of costs on an appeal to the Appellate Division is $250 and to the Court of Appeals $500 (CPLR §§8203, 8204), with lesser sums on appeals to the Appellate Term (CPLR §8203[b]).

In the absence of direction to the contrary, an allowance or disallowance of costs by an appellate court, without anything further, means costs in that court only. See Brocia v. F. Romeo & Co., 241 NY 505, 506 (1925); Salerno v. New York Central Railroad, 44 Misc.2d 86. 87, 253 NYS2d 37, 38 (Sup. Ct., Monroe Co. 1964).

Judgments for costs may become very large. This is because CPLR §8301, “Taxable disbursements,” provides a “party to whom costs are awarded in an action or on appeal is entitled to tax his necessary disbursements” for each of the items listed in subsections a.1—a.13 of the statute. These include the reasonable expenses of procuring the stenographic transcript and necessary printing or reproduction expenses (CPLR § 8301 a.6) and “the reasonable expenses necessarily incurred in securing an undertaking to stay enforcement of a judgment subsequently reversed.” CPLR §8301 a.11.

In Abdella v. Scriver, 75 Misc2d 800, 847 NYS2d 992 [Sup Ct., Fulton Co. 1973], respondents moved in the Appellate Division, pursuant to CPLR §5528, for an order directing appellant to print certain portions of the record omitted by appellant in his appendix, and which respondents deemed necessary for the consideration of the questions involved. Respondents’ motion was denied without costs, whereupon respondents printed other portions of the record and incorporated them into an appendix.

The appellant has the primary burden of presenting an appendix which complies with the requirements of CPLR §5528 and “is not relieved of this responsibility by the fact that respondent may also submit an appendix containing such additional parts of the record as are necessary to consider the questions involved.” (75 Misc2d at 802). Ultimately, the appellant may be found liable for the costs of printing the supplemental appendix.

In E.P. Reynolds, Inc. v. Nager Electric Co., 17 NY2d 51 [1966], although a trial transcript was over 950 pages, appellant’s appendix in the Court of Appeals reproduced only 13 pages. The Appellate Division had affirmed solely upon the ground that the appendix submitted to it by the appellant “was insufficient to permit determination of the questions sought to be raised. Legal and factual issues were not considered.’

Although the Court of Appeals “agree[d] with the Appellate Division that it is not required to determine an appeal with the aid of an appendix which it considers inadequate,” it believed that “neither CPLR 5528 nor the necessary implementation of its purpose warrants affirmance of this appeal on the ground stated by the Appellate Division. To hold otherwise would inevitably decrease the value to be derived from an appendix by encouraging the inclusion of material unnecessary to the questions sought to be reviewed. In the final analysis, an unnecessarily extended appendix proves as burdensome as one which is too short.”

In some cases the parties may anticipate that an appeal will be taken in the event of an adverse decision and order daily copy or selected portions of the transcript during the course of the trial.  If these minutes are subsequently used in preparation of the record on appeal, their cost is a taxable disbursement notwithstanding that they were procured during the trial. Chelrob v. Barrett, 180 Misc 314, 41 NYS2d 97 [Sup Ct, Nassau Co. 1943].

However, “an expenditure to procure a transcript of trial minutes in order to aid counsel in his preparation of a brief for presentation to the trial court is not a taxable disbursement.”  Hempstead Bank v. Ryan, 42 AD2d 779, 346 NYS2d 541 [2d Dept. 1973].

There may be occasions where the potential imposition of costs can be a significant factor in the litigation.

For example, assume plaintiff, a person of modest means, with some savings amassed after a lifetime of work and equity in a home, recovers a verdict after a six-week trial of a personal injury action. Defendant, represented by an insurance carrier that pays all its defense costs, appeals the judgment. The cost of procuring the stenographic minutes and reproducing them in the printed record on appeal, which are taxable disbursements under CPLR §8301, will amount to tens of thousands of dollars.

If defendant prevails on the appeal, plaintiff may end up faced with a very substantial judgment for costs that threatens to wipe out his or her life’s savings. In such case, it is easy to see how a potentially adverse judgment for costs in the event of a reversal may be an important factor in plaintiff’s decision whether to accept an offer of settlement, assuming one is made, rather than risk an adverse result on appeal and devastating costs.

Where “the printed papers on appeal consist largely of irrelevant matter, disbursement for printing the record is disallowed.” Matter of Cherry, 201 App Div 856,193 NYS 57 [2d Dept. 1922], aff’d sub nom. Cherry v. Isbister, 234 NY 607 [1922]. Printing costs have also been denied where the court found a party’s briefs to be excessively long (“The 203 pages of plaintiffs’ brief and reply brief invoke our denial of costs”).  Horowitz Bros. & Margareten v. Margareten, 64 NY2d 1008 [1985], or too short and of “poor quality.” Stabulas v. Brooks Piece Dye Works, 11 AD2d 803, 805,490 NYS2d 549, 551 [2d Dept 1985] (“Costs on the appeal have been denied due to the poor quality of respondent’s brief. Not only was that brief unresponsive to appellants’ claims, but it was only two and one-half pages long and cited no legal authority, which, under the circumstances, was inappropriate”).

Costs have also been denied because of counsel’s gross misconduct. In Reilly v. Billy Blake Discount Department Stores, 39 AD2d 925, 333 NYS2d 12, 13 [2d Dept. 1972], the Appellate Division withheld costs from the prevailing party because defense counsel stated in summation that “’that phony witness they bought, and I don’t know how he got to her’ was an improper reflection on plaintiffs’ counsel. It finds no basis in the record and it was completely irresponsible and reprehensible … We therefore reinstate the verdict in favor of defendants, but, in view of counsel’s conduct, award no costs to defendants.”

In Lew Morris Demolition v. Board of Education, 80 Misc2d 944, 365 NYS2d 109, 110 [Civil Ct, NY Co., 1974], costs were denied where printing was not “required” by statute or court rule. Movant, having been denied summary judgment in the Civil Court, appealed to the Appellate Term and prevailed.

The Civil Court refused to permit him to tax as costs the disbursement for printing the record noting that printing is not required on an appeal to the Appellate Term. The court wrote: “If the movant, who is under no mandate to do so, but for what appears to be purely aesthetic reasons, has the record printed, it would be highly improper for this court to impose the cost of such printing upon the plaintiff.”

While revisions of a printer’s proof are commonplace, if not a necessity, on every appeal, courts have disallowed as taxable disbursements charges appearing on the printer’s bill for  “author’s alterations” and “printing more than the required copies of the record on appeal, appellant’s brief and reply brief.” Matter of Jones, 17 Misc2d 951, 191 NYS2d 543, 544 [Sur. Ct. Nassau Co. 1959]. Be sure to proofread your briefs carefully before filing them, as “[a]uthor’s corrections or alterations should not be necessary and charges therefor are not reasonable expenses of printing the points.” Matter of Weiman’s Estate, 152 Misc 385, 273 NYSupp 557, 559 [Sur. Ct. Bronx Co. 1934].

A case may be of great interest to persons other than the parties involved and you can anticipate receiving requests for copies of the record and briefs. If that happens, you may wish to order additional copies printed. This will have to be done at your own expense since charges for printing more than the required number of copies of the record on appeal or briefs will be disallowed and stricken from the bill of costs (Matter of Jonessupra).

Where an order of the trial court was affirmed on cross-appeals, costs were not awarded to either side. Clarke v. Stumpf , 190 AppDiv 538, 180 NYSupp 125 [2 Dept. 1920].

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.