Lafferty v Lafferty

[*1] Lafferty v Lafferty 2017 NY Slip Op 51337(U) Decided on August 30, 2017 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2017
Supreme Court, Warren County

Douglas J. Lafferty, Plaintiff,

against

Lawrence E. Lafferty and Martin C. Lafferty, Defendants, Suzanne Bridget Lafferty, Individually and as Executrix of the Estate of Ronald Lafferty, Intervenor.



58858



Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), for plaintiff.

Girvin & Ferlazzo, P.C., Albany (Salvatore D. Ferlazzo of counsel), for defendants Lawrence E. Lafferty and Martin C. Lafferty.
Robert J. Muller, J.

The facts of this matter are set forth in a prior decision of the Court and need not be repeated at length. Briefly stated, this is a partition action involving real property located on Lake George in the Town of Bolton, Warren County. David B. Avigdor, Esq. was appointed as referee in December 2013 and a hearing was conducted in September 2015. Avigdor then submitted a detailed report finding that plaintiff has a 50% interest in the property, while defendant Lawrence E. Lafferty (hereinafter Lawrence) and defendant Martin C. Lafferty (hereinafter Martin) each have a 25% interest. Avigdor further found that the property should be sold in one parcel. This report was confirmed by Order and Interlocutory Judgment (hereinafter the Interlocutory Judgment) dated July 20, 2016, with Mary Ellen Stockwell, Esq. appointed as referee to sell the property.[FN1] The property was sold at public auction in February 2017 and [*2]plaintiff was the highest bidder, purchasing the property for $680,000.00.[FN2] Stockwell submitted her report of sale in March 2017, together with her application for fees in the amount of $3,150.00. Presently before the Court is plaintiff's motion to confirm the report and for a Judgment directing a distribution of the proceeds of sale.[FN3]

Initially, while Lawrence and Martin have appeared in opposition to that aspect of the motion seeking a distribution of the proceeds of sale, both consent to confirmation of the report of sale. The first aspect of the motion is therefore granted in its entirety.

Turning now to the second aspect of the motion, plaintiff first requests that — from the proceeds of sale — he be paid $47,249.24, Lawrence be paid $29,505.35 and Martin be paid $8,518.16. This request conforms fully with Avigdor's report, which finds that the proceeds of sale shall be distributed as follows:

"First, to Kelly J. Owens for the outstanding portion of her invoice.[FN4] "Second to David B. Avigdor, for his invoice . . . ."Third, to [plaintiff] in the amount of $47,249.24, to Martin in the amount of $8,518.16, and to Lawrence in the amount of $29,505.35, to reimburse expenses paid with respect to the [p]roperty."

Given the findings in the report, defendants do not object to the request and the Court directs that such payments be made. The Court further approves Stockwell's requested fee of $3,150.00 and directs that this payment also be made from the proceeds of sale.

Second, plaintiff next requests that the $378.75 which remains due and owing to Owens "be paid as a disbursement by Lawrence . . . and Martin out of their respective shares of the sale proceeds." The Court, however, declines to grant this relief. Avigdor expressly found that any outstanding portion of Owens' invoice should be paid from the proceeds of sale, which finding was confirmed in the Interlocutory Judgment. The Court therefore directs that Owens be paid $378.75 directly from the proceeds of sale.[FN5]

Third, plaintiff indicates that $14,027.88 is due and owing for the 2016 and 2017 Town and County taxes on the property and requests that these taxes be paid from the proceeds of sale (see RPAPL 981 [4]). Defendants do not object to this request and the Court directs that such payments be deducted from the proceeds of sale.

Fourth, plaintiff requests that he be reimbursed for the $2,548.50 he paid for insurance on the property. Specifically, plaintiff requests "that he be reimbursed for 50% of the amounts paid for such insurance from [d]efendants out of their respective share of the net proceeds of sale, [*3]with Lawrence and Martin each contributing $637.13." Defendants object to this request, contending that the decision to insure the property was made by plaintiff "unilaterally and he should simply pay his own bills."

The Court finds defendants' contention to be without merit. Irrespective of whether the decision to maintain insurance on the property was made by plaintiff unilaterally, such insurance was clearly beneficial to all parties — each of whom held an ownership interest in the property. With that said, the Court hereby directs that Martin and Lawrence reimburse plaintiff for 50% of the amount paid for insurance — namely, $1,244.26 — from their respective shares of the net proceeds of sale.[FN6] More specifically, the Court directs Martin and Lafferty to each pay plaintiff $622.13 from their respective shares of the net proceeds of sale.

Fifth, plaintiff requests that he recover $600.00 in taxable costs from defendants' respective shares of the net proceeds of sale, which amount is comprised of $200.00 for proceedings before filing of the note of issue (see CPLR 8201 [1]); $300.00 for trial (see CPLR 8201 [3]); and a $100 motion fee (see CPLR 8202). RPAPL 981 (3) provides, in pertinent part:

"Where final judgment confirming a sale is rendered, the costs of each party to the action and the expenses of the sale, including the officer's fees, shall be deducted from the proceeds of the sale and distributed as the court shall order. But the court, in its discretion, may direct that the costs and expenses of any trial, reference or other proceeding in the action be paid out of the share of any party in the proceeds, or may render judgment against any party therefor."

Defendants consent to the $200.00 in costs for proceedings before filing of the note of issue and the $100 motion fee, but object to the $300.00 for trial because "no trial was conducted."

The Court finds this objection to be unavailing. CPLR 8201 (3) awards costs "for each trial, inquest or assessment of damages." With that said, "'[t]rial' is defined in all standard legal dictionaries as an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue"

(Bermont v Serge El. Co., Inc., 199 Misc 825, 825 [NY City Ct 1951]). Here, Avigdor — in his capacity as the Court-appointed referee — conducted a lengthy hearing to ascertain the parties' rights, shares and interests in the property. The Court finds this hearing sufficient to constitute a "trial" for purposes of CPLR 8201 (3) (see Wong v Eng, 1998 WL 996734, *4 [Sup Ct, NY County 1998]). Plaintiff is therefore awarded the requested $600.00 in taxable costs.

Insofar as the payment of these costs is concerned, the Court may direct that statutory costs be paid out of defendant's share of the net proceeds where defendant's conduct has resulted in "a tortuous history of litigation" (McVicker v Sarma, 163 AD2d 721, 722 [1990]). While the instant case certainly has a tortuous history, defendants are not wholly to blame. Rather, all of the parties bear some responsibility. The Court therefore finds that the $600.00 in costs shall be paid from the proceeds of sale, as opposed to defendants' respective shares of the net proceeds of sale.

Sixth, plaintiff requests $4,487.86 in fees and disbursements from defendants' respective shares of the net proceeds of sale, which amount is comprised of the $210.00 he paid for an index number; the $437.25 he paid to Owens; the $3,150.00 awarded to Stockwell; the $145.86 he paid for publication of the notice of sale; the $216.00 he paid to obtain a copy of the transcript of Thomas Gabriels' testimony;[FN7] the $133.75 he paid for a tax/lien search; the $100.00 he paid for service of process; and the $95.00 he paid for the request for judicial intervention. Defendants object to this request for fees and disbursements in its entirety, contending that it is "not supported by statute or case law."

The Court finds this contention to be wholly without merit. CPLR 8301 (a) provides that a party to whom costs are awarded in an action is entitled to tax necessary disbursements for, inter alia, fees of referees, fees for publication, expenses of making a transcript, expenses of a tax/lien search and fees associated with Court filings and service of process. It must also be noted that CPLR 8301 has been applied in the context of partition actions (see Wong v Eng, 1998 WL 996734 at *4; Schorner v Schorner, 128 Misc 2d 415, 426 [Sup Ct, Nassau County 1985]). With that said, the Court finds that plaintiff is entitled to taxable disbursements of $1,197.86, which amount is comprised of the $210.00 plaintiff paid for an index number; the $437.25 he paid to Owens; the $105.86 he paid for publication of the notice of sale;[FN8] the $216.00 he paid for a copy of Gabriels' transcript; and the $95.00 he paid for the request for judicial intervention. In accordance with the discussion set forth above, the Court further finds that this amount shall be paid from the proceeds of sale, as opposed to defendants' respective shares of the net proceeds of sale.

The Court declines to award plaintiff a taxable disbursement relative to Stockwell's fee of $3,150.00, which will be paid from the proceeds of sale. The Court further declines to award $100.00 for service of process, as plaintiff has failed to submit any proof of such payment (see Fischer v RWSP Realty LLC, 48 AD3d 511, 512 [2008]).

Finally, plaintiff seeks a discretionary allowance in the amount of $3,000.00. In this regard, CPLR 8303 (a) (3) provides, in pertinent part:

"[T]he court before which the trial was had, or in which the judgment was entered, on motion, may award . . . to any party to an action for the partition of real property, a sum not exceeding five per cent of the value of the subject matter involved and not exceeding the sum of three thousand dollars."

Plaintiff contends that he is entitled to this discretionary allowance as a result of defendants' conduct in "perverting the litigation process and creating one obstacle after another to delay the sale [of the property] and [to] financially ruin [him]." Defendants, on the other hand, contend that plaintiff is not entitled to the discretionary allowance because his "hands are less than clean." Plaintiff repeats and reiterates the several things defendants have done throughout this vexatious litigation, while defendants repeat and reiterate the several things that plaintiff has [*4]done. Indeed, there is no doubt that both sides have ample ammunition. It is for this reason that the Court declines to award the discretionary allowance under CPLR 8303 (a) (3). As intimated above, this was not a case where one side was continually obstructive while the other was fully cooperative; rather, the case was plagued by animosity on all sides (compare McVicker v Sarma, 163 AD2d at 722-723; Schorner v Schorner, 128 Misc 2d at 426).

Based upon the foregoing, the second aspect of plaintiff's motion is granted as follows:

From the $680,000.00 in proceeds from the sale, Stockwell shall pay $47,249.24 to plaintiff, as per Avigdor's report;$8,518.16 to Martin, as per Avigdor's report;$29,505.35 to Lawrence, as per Avigdor's report;$378.75 to Owens, as per Avigdor's report;$3,150.00 to Stockwell, for her services as referee;$14,027.88 to the Town/County for 2016 and 2017 taxes;$600.00 to plaintiff, in costs; and $1,197.86 to plaintiff, in fees and disbursements.The $575,372.76 in net proceeds shall then be divided among the parties in accordance with their respective interests in the property. These payments, however, must reflect the $1,244.26 owed by defendants to plaintiff for their portion of the insurance payments. Specifically, Stockwell shall pay$288,930.64 ($287,686.38 + $1,244.26) to plaintiff; $143,221.06 ($143,843.19 — $622.13) to Martin; and$143,221.06 ($143,843.19 — $622.13) to Lawrence.

Therefore, having considered the Referee's Report of Sale, sworn to March 22, 2017; Affirmation for Referee's Fees with exhibit attached thereto, sworn to March 22, 2017; Affidavit of Mark E. Cerasano, Esq. with exhibits attached thereto, sworn to April 11, 2017; Affirmation of Salvatore D. Ferlazzo, Esq. with exhibits attached thereto, dated April 28, 2017; and Reply Affidavit of Mark E. Cerasano, Esq., sworn to May 2, 2017, it is hereby

ORDERED, ADJUDGED AND DECREED that the first aspect of plaintiff's motion seeking to confirm the Referee's Report of Sale is granted in its entirety; and it is further

ORDERED, ADJUDGED AND DECREED that the second aspect of plaintiff's motion for a Judgment directing a distribution of the proceeds of sale is granted as set forth above and is otherwise denied; and it is further

ORDERED, ADJUDGED AND DECREED that any relief not specifically granted has nonetheless been considered and is expressly denied.

The above constitutes the Decision, Order and Judgment of this Court.

The original of this Decision, Order and Judgment has been filed by the Court together with the above-referenced submissions and the Notice of Motion dated April 11, 2017. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR 5513.

Dated: August 30, 2017

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1:Avigdor retired from the practice of law in April 2016.

Footnote 2:The parties were permitted to "credit bid" their respective interests under the terms of sale. As such, plaintiff paid $340,000.00 — or 50% of the purchase price — at the time of sale, which amount is being held in escrow by Stockwell.

Footnote 3:The phrase "proceeds of sale" — as used herein — is intended to reference the gross proceeds of sale. In the event the Court needs to reference any net proceeds, it will so specify.

Footnote 4:Owens was the stenographer for the hearing before Avigdor.

Footnote 5:No issues have been raised relative to Avigdor's fees, which have been paid in full.

Footnote 6:While plaintiff contends that he paid $2,548.50 for insurance, the account of insurance payments attached to the motion indicates that only $2,488.50 was paid. The Court has therefore used this latter figure in its calculations.

Footnote 7:Gabriels testified at the hearing before Avigdor.

Footnote 8:While plaintiff contends that he is entitled to $145.86 for publishing the notice of sale, the invoice attached to the motion indicates that publication of the notice of sale cost only $105.86. The Court has therefore used the latter figure in its calculations.