Beutler v. Maynard

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred by striking the judgment awarding costs to plaintiffs Beutler and Randazzo. The Court of Appeals affirmed "with costs” (56 NY2d 538, 540) the order of this court (80 AD2d 982), which modified the judgment of Supreme Court that dismissed plaintiffs’ complaint following a nonjury trial. The modification consisted of reinstating the complaint and granting judgment in plaintiffs’ favor. Although plaintiffs’ counsel belatedly filed the judgment and bill of costs, a practice we do not condone, we conclude that Supreme Court lacked authority to modify the terms of the Court of Appeals’ order by striking the award for costs. Additionally, we note that plaintiffs’ counsel’s omission to enter a judgment making the order of the Court of Appeals that of the Supreme Court was a "formal irregular*1079ity” not "of any serious moment” and we direct that it be corrected by the filing of the judgment nunc pro tunc (Chautauqua County Bank v White, 23 NY 347, 350; see also, 11 Carmody-Wait 2d, NY Prac § 71:187, at 194).

We conclude, however, that plaintiffs are entitled only to costs taxed at $1,675.62. They are entitled neither to costs of $150 taxed pursuant to CPLR 8201 nor to prejudgment interest. (Appeal from Order of Supreme Court, Cattaraugus County, Horey, J. — Costs.) Present — Green, J. P., Pine, Balio, Boehm and Davis, JJ.