Mackey v Dosiak

Mackey v Dosiak 2006 NYSlipOp 26540 November 28, 2006 Emerson, J. Supreme Court, Suffolk County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 18, 2007

[*1] Dorothy J. Mackey, Plaintiff,
v
Bennetta K. Dosiak, Doing Business as Manorville Florist, Defendant.

Supreme Court, Suffolk County, November 28, 2006

APPEARANCES OF COUNSEL

Robert Wilson, West Islip, for plaintiff. Hennessey & Denatale, Shirley, for defendant.

OPINION OF THE COURT

Elizabeth H. Emerson, J.

Ordered that this motion by the plaintiff to recover costs is denied.

By an order of this court dated November 1, 2005, the plaintiff's ex parte application for an order of default against the defendant was granted, and the matter was referred to an inquest [*2]on damages. The defendant moved to vacate her default, which was denied by an order of this court dated April 7, 2006. The defendant subsequently moved to renew and reargue the denial of her motion, which was granted by an order of this court dated August 8, 2006, and, upon renewal and reargument, the defendant's motion to vacate her default was granted. The plaintiff now moves for an order granting her costs on the two prior motions.

Costs must be distinguished from disbursements, which are reimbursement for the actual out-of-pocket expenses incurred by a party in the prosecution of her action (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8101:1). Whoever is entitled to costs, is also entitled to disbursements (see, CPLR 8301), although it is possible in some cases to get disbursements even though costs are not awarded (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8301:1). Whereas costs in an action are generally a matter of right (see, CPLR 8101), costs upon a motion are not (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C8106:1).

Here, the plaintiff seeks to recover from the defendant the out-of-pocket expenses she incurred as a direct result of the defendant's default. CPLR 8301 (b) provides that, upon the motion of any party made after the determination of a motion, the court may allow any party thereto to tax as disbursements her reasonable and necessary expenses of the motion. The disbursements that the plaintiff seeks to recover were, for the most part, incurred in connection with the order of default and inquest, not the motions by the defendant to vacate her default. Thus, the court finds that they are not reasonable and necessary expenses of those motions. Accordingly, this motion is denied.