Matter of Johnson v Kelly

[*1] Matter of Johnson v Kelly 2006 NY Slip Op 51951(U) [13 Misc 3d 1223(A)] Decided on October 16, 2006 Supreme Court, Orange County Dickerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 16, 2006
Supreme Court, Orange County

In the Matter of the Application of William Johnson and Alice Johnson, Petitioners,

against

Eileen Kelly, Assessor of the Town of Goshen, Respondent.



5077/99



TO: James G. Sweeney, Jr., Esq.

Attorney for Petitioners

One Harriman Square

POB 806

Goshen, NY 10924

John H. Thomas, Jr., Esq.

Jacobowitz & Gubits, LLP

Attorneys for Respondent

158 Orange Avenue

POB 367Walden, NY 12586-0367

Thomas A. Dickerson, J.

The Petitioners, William and Alice Johnson, brought a " Notice of Motion to Vacate Three Clerk's Judgements "[FN1] and requested the [*2]imposition of costs and attorneys fees associated with making the instant motion. The Respondent, Eileen Kelly, the Assessor of the Town of Goshen, submitted an " Affirmation "[FN2] in opposition thereto.

Factual Background

The instant R.P.T.L. Article 7 proceedings were commenced in the years 1999, 2000 and 2001, respectively, and were, by Interlocutory Order of this Court [ Rosado, J ] dated March 20, 2003, consolidated for purposes of trial with subsequent proceedings brought relating to the same property for the years 2002, 2003 and 2004.

The Pre-Trial Motion To Preclude

On October 31, 2005 the Petitioners made a pre-trial motion to preclude the use of Respondent's appraisal report at trial. The Petitioners, in their Reply Affidavit sworn to on November 7, 2005, stated, " The Respondent is correct that the 1999-2001 proceedings are no longer in contention and should be deemed abandoned by the

Petitioner "[FN3]. This Court deferred making any decision on that motion until after trial.

The Trial

The remaining three R.P.T.L. Article 7 proceedings for the years 2002, 2003 and 2004 came before this Court for trial on November 29, 2005 and November 30, 2005.

Withdrawl Of Three Petitions Confirmed

On November 29, 2005, prior to the commencement of the trial, the Petitioners' counsel confirmed for the Court that Petitioners [*3]would not be proceeding on tax years 1999, 2000 and 2001 [FN4].

Motion To Dismiss Granted

Thereafter, Respondent made a motion to dismiss the Petitions for tax years 1999, 2000 and 2001 which was granted by the Court on consent [FN5].

The Proposed Judgments

On December 29, 2005, after the conclusion of the trial, but before a decision on the merits, Respondent's counsel submitted to this Court three separate proposed judgements. Respondent moved for an order that the proceedings for 1999, 2000 and 2001 be dismissed with prejudice and that costs be allowed. Those proposed judgements contained provisions, in blank format, for the imposition of fees and costs [FN6].

The Petitioners' Objections

The Petitioners sent a letter to this Court dated February 2, 2006 pursuant to C.P.L.R. § 8404, in the nature of objections to the possible imposition of costs and fees relating to these proceedings since the matters had been withdrawn before the Court rendered any decision.

The Proposed Judgments Not Signed

This Court did not sign Respondent's proposed judgements.

The Post Trial Decision & Order [*4]

On April 17, 2006 this Court rendered its Decision and Order determining the merits of the 2002, 2003 and 2004 R.P.T.L. Article 7 proceedings [ See Johnson v. Kelly, 11 Misc 3d 1081 ( Orange Sup.

2006 )].

The Judgments Assessing Fees & Costs

On April 27, 2006, the Clerk of the Court for Orange County made and entered three separate judgements dismissing the proceedings for 1999, 2000 and 2001 and assessing fees and costs in the amount of $835.00 for each proceeding [FN7].

Recycling [FN8] Rejected Proposed Judgments

The text of these new judgements is exactly the same as those submitted to this Court by Respondent's counsel on December 29, 2005 except that the date has been altered in pen to reflect a signature date of April of 2006 [ as opposed to January of 2006 as originally proposed ]. The blanks in the original proposed Orders reflecting costs and fees have been filled out in handwriting with a figure of $835.00 in each proceeding [FN9].

Where Were The New Judgments Signed?

The judgements were signed by an acting deputy clerk of the Supreme Court for Orange County in Goshen, New York notwithstanding that they each recite that they were signed at White Plains, New York.

DISCUSSION

C.P.L.R. § 8101: Costs In An Action [*5]

C.P.L.R. § 8101 states that " The party in whose favor a judgement is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determined that to so allow costs would not be equitable, under all of the circumstances ".

C.P.L.R. § 8301: Taxable Disbursements

C.P.L.R. § 8301 states that " (a) Disbursements in action or on appeal. A party to whom costs are awarded in an action or on appeal is entitled to tax his necessary disbursements for:... (b) Disbursements on Motion. Upon motion of any party made after the determination of a motion, or upon its own initiative, the court may allow any party thereto to tax as disbursements his reasonable and necessary expenses of the motion."

The Orange County Clerk's Judgments Are Vacated

It is this Court's determination that under all the circumstances herein, it would be inequitable to allow costs. Before the Respondent made its motion to dismiss the 1999, 2000 and 2001 proceedings the petitions for tax years 1999, 2000 and 2001 had been withdrawn.

The Court's Intentions Were Clear

In addition, when this Court refused to sign Respondent's December 29, 2005 proposed judgements, it should have been obvious to the Respondent that the Court's intention was not to dismiss the petitions with prejudice and not to allow costs. The record is clear that the 1999, 2000 and 2001 petitions were withdrawn by the Petitioners before the trial began, and that when the Respondent did move for dismissal after the fact, it was granted by the Court on consent. In fact, when the Court granted Respondent's motion to dismiss on consent, there was no discussion of costs.

Circumventing The Court's Earlier Decision

It appears as though the Respondent was unhappy with this Court's refusal to sign its first set of proposed judgements and therefore chose to circumvent the Court's decision not to dismiss the petitions with prejudice and not to grant costs. The Respondent tried to accomplish this by presenting for signature to the Clerk of the Court for Orange County the very same judgements this Court refused to sign. The inequity of the Respondent's actions speaks for itself.

[*6]Disbursements Not Allowed

In addition, pursuant to C.P.L.R. § 8301, the Respondent is not entitled to disbursements since this Court has determined that costs will not be allowed. The Court will not allow disbursements, in any event, for the same equitable reasons set forth above for the disallowance of costs.

Accordingly, the Petitioners' motion is granted to the extent that the aforesaid judgements are vacated. The Petitioners' request for the imposition of costs and attorneys fees is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: October 16, 2006

White Plains, NY

HON. THOMAS A. DICKERSON

JUSTICE SUPREME COURT

ENDNOTES

Footnotes

Footnote 1: Petitioners' Notice of Motion to Vacate Three Clerk's Judgments dated May 18, 2006 [ " P. Motion " ] together with

supporting Affidavit of James G. Sweeney sworn to May 18, 2006

[ " Sweeney Aff. " ].

Footnote 2: Affirmation of John H. Thomas, Jr. dated May 30, 2006

[ " Thomas Aff. " ].

Footnote 3: P. Motion at Ex. D at para. 3.

Footnote 4: T. Rec. at p. 2 ( " THE COURT:...I just wanted to confirm, the petitioner, that they will not be proceeding on the years1999, 2000, 2001; is that correct? MR. SWEENEY: That's

correct. " ).

Footnote 5: T. Rec. at p. 3 ( " MR. THOMAS: I guess my first motion would be the dismissal of the 1999, the 2000, 2001 proceedings sincethe THE COURT: Granted on consent " ).

Footnote 6: Thomas Aff. at Exs. 1, 2 and 3.

Footnote 7: Sweeney Aff. at Exs. A, B & C.

Footnote 8: For an example of the recycling of appraisals see SKM Enterprises Inc. v. Town of Monroe, 2 Misc 3d 1004 ( Orange Sup. 2004 )( " Unfortunately, for the fun loving bowlers of Orange County and beyond the Bowl-O-Fun burned down in July of 1997 and to this day remains a charred and empty reminder of the good old days " ).

Footnote 9: P. Motion at Exs. A, B and C.