W.P. Schaefer Construction Co. v. E.W. Howell Co.

In an action to recover damages for breach of contract, the plaintiff appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Roncallo, J.), dated June 5, 1989, as granted that branch of the defendant’s cross motion which was for the imposition of costs and sanctions pursuant to 22 NYCRR 130-1.1 in the amount of $10,000, and (2) from an order of the same court, dated July 31, 1990, which amended the order dated June 5, 1989, by reducing the award of costs to $2,200.

Ordered that the appeal from the order dated June 5, 1989, is dismissed, without costs or disbursements, for failure to serve and file a notice of appeal within the time limitations set forth in CPLR 5513; and it is further,

Ordered that the order dated July 31, 1990 is reversed, on the law, without costs or disbursements, that branch of the defendant’s cross motion which was for the imposition of costs and sanctions is denied, and the order dated June 5, 1989, is modified accordingly.

We find that, under the circumstances of this case, costs should not have been awarded to the defendant. In this respect, we note that the Supreme Court found, and we agree, that while the relief requested by the plaintiff’s attorney, upon which the request for costs was based, was technically improper, the attorneys’ conduct in requesting the relief was due to a "misunderstanding” and a "mistake”. We also note that the improper relief was requested in a multi-pronged motion, and part of the motion was granted by the court. Rosenblatt, J. P., Miller, Ritter and Pizzuto, JJ., concur.