Justice Eric I. Prus


DECISION AND ORDER

On April 10, 2006, this Court directed the defendant/husband to pay the plaintiff/wife $5,400 for the cost of the minutes of certain hearings before a Judicial Hearing Officer (JHO). Plaintiff had claimed need of these funds in order to prosecute an appeal of the JHO's Orders. On December 1, 2006, this Court ordered the defendant to pay the plaintiff the sum of $7,500 for printing costs necessitated by said appeal. Both applications for these payments were made by the plaintiff pursuant to Domestic Relations Law §238.

On January 7, 2008, the Appellate Division, Second Department, held in favor of the defendant and awarded him "one bill of costs". The Appellate Division Decision and Order was entered on March 25, 2008. The defendant served a copy of the Decision and Order with Notice of Entry on the plaintiff on May 2, 2008. Subsequently, on June 3, 2008, a Bill of Costs to the defendant in the amount of $14,766.78 was entered by the Kings County Clerk. The defendant served the Bill of Costs with Notice of Entry on the plaintiff's attorney and on June 26, 2008, the defendant moved this Court by Order to Show Cause for a money judgment based on the Bill of Costs. This Court signed the Order to Show Cause which contained a direction to freeze all of plaintiff's bank accounts except for withdrawals for ordinary living expenses. Plaintiff has, to date, not paid any of the monies listed in the Bill of Costs.

Plaintiff has moved this Court by Order to Show Cause to vacate the temporary restraining order of June 26, 2008 and by Notice of Motion to re-tax the costs entered by the Kings County Clerk.

The total award in the Bill of Costs was $14,760.78 representing disbursements for paid printing costs pursuant to CPLR §8301 (a) (6) (but which mistakenly omitted $250 in costs for the appeal to the Appellate Division). Clearly, the defendant deemed his 2006 payments to the plaintiff for transcript and printing expenses, totaling $12,900 as legitimate costs to which he was entitled to be reimbursed pursuant to CPLR §8301 (a) and so, included these amounts as part of the "paid printing" in the Bill of Costs. The sole, significant issue raised by the plaintiff in all of the above noted applications is whether or not the defendant, for the purpose of his Bill of Costs, should be allowed to claim the expenses of $5,400 and $7,500 paid to the plaintiff pursuant to DRL §238 to enable her to conduct an appeal of the JHO's orders. In essence, plaintiff maintains that such expenses were the plaintiff's costs, and not the defendant's.

When a prevailing party is awarded a bill of costs following an appeal, that litigant is entitled to costs and disbursements pursuant to CPLR §8201 et seq. and CPLR §8301 et seq. As pertains to the instant matter, statutory disbursements, representing certain out-of-pocket expenses that a party incurs while preparing for and conducting a trial, may include monies expended for reproducing the record on appeal - printing and copying the relevant minutes, as long as such expenses are reasonable and necessary. CPLR §8301; Two Guys From Harrison-NY v. S.F.R. Realty Associates, 186 AD2d 186, 188-189; Lipton v. Mitchell and KDT Management Co., Inc., 145 Misc. 2d 444. Generally, a party may recover for expenses that have actually been made. See National Granite Title Insurance Agency, Inc. v. Cadlerock Properties Joint Venture, LP, 17 AD3d 551; Pauk v. Pauk, 175 Misc. 2d 561, 562-563 (where monies borrowed were construed as payments actually made - [N]otwithstanding that the appellate costs were not actually paid, [but were borrowed], on the facts of this case, they may be recovered as taxable disbursements under CPLR §8301 (a) (6), which authorizes 'reasonable expenses of printing the papers for a hearing, when required.' It is recognized that the cost of reproducing the record or appendix and briefs are proper disbursements, which may be taxed as . . . "costs," as long as the charges are "reasonable and necessary.").

This Court finds that the $12,900 defendant was ordered to pay the plaintiff in 2006 were printing costs that he incurred for the purpose of the appeal. It matters not that the monies, designated by this Court for printing and transcript costs were paid to the plaintiff who then paid the printer. The fact remains that the defendant would not have been obligated to make these payments had the plaintiff not appealed. Therefore, as the party in whose favor the appeal was decided, and as the Appellate Division ordered, the defendant is entitled to all his costs and disbursements associated with the appeal since he was responsible for and charged with said costs however indirectly.

Plaintiff's contention that since the $12,900 were costs needed by the plaintiff to conduct the appeal, they cannot be claimed by the defendant are without merit for the reasons articulated hereinabove. Furthermore, plaintiff has failed to prove to this Court that any of the expenses in defendant's Bill of Costs above and beyond the $12,900 were unreasonable, or unnecessary. Thus, plaintiff's application for a disallowance of any disbursements is denied. Defendant's Bill of Costs is to be re-taxed to reflect the original amount of $14,766.78 plus the allowed court costs of $250 for a total of $15,016.78. The restraining order imposed on plaintiff's bank accounts may be vacated upon her satisfaction of the money judgment sought by the defendant and granted by the instant Order which shall be modified to reflect the appropriate amount noted herein.

Accordingly, the plaintiff's Motion to re-tax defendant's Bill of Costs is denied, the defendant's Order to Show Cause to enter a money judgment plus interest in favor of the defendant is granted in the amount of $15,016.78, and the plaintiff's Order to Show Cause to vacate the temporary restraining order is denied, all in accordance with this Order.

This constitutes and decision and order of this Court.