Underhill Venture, LLC v Sarang
Attorneys and Parties
Brief Summary
A real estate contract dispute led to an appellate-costs issue: whether digital appellate record and brief preparation expenses are taxable as disbursements under CPLR 8301(a)(6) [allowing taxation of necessary disbursements, including reasonable expenses of printing papers for a hearing, when required], and whether a fee paid to cancel a notice of pendency was recoverable.
The Supreme Court held that the Appellate Division's prior award of 'one bill of costs' did not include disbursements and vacated the portions of the judgment awarding the plaintiff $6,135.54 for digital appellate printing-related expenses and $300 for the fee incurred to cancel the notice of pendency, leaving only statutory costs of $250.
The Appellate Division reversed the vacatur of the $6,135.54 printing-related disbursement, but left in place the vacatur of the $300 notice-of-pendency cancellation fee.
The court held that, absent a contrary direction, an appellate award of costs includes disbursements under 22 NYCRR 1250.16(b), and that required digital filing tasks such as electronic bookmarks, links, file conversion, and uploads are recoverable as reasonable printing expenses under CPLR 8301(a)(6). But the $300 cancellation fee was not recoverable under CPLR 8301(a)(13) [permitting other reasonable and necessary expenses taxable by court practice, express law, or court order] because, in the prior appeal, the court had already rejected bad-faith and sanctions-based grounds tied to the notice of pendency.
Background
The plaintiff agreed to build and sell a house in Oyster Bay to the defendants. After alleging that the defendants defaulted on payments for requested upgrades, the plaintiff sued for declaratory relief seeking to void the contract and retain the down payment. The defendants counterclaimed and filed a notice of pendency against the property. The Supreme Court originally denied the plaintiff's motion to cancel the notice of pendency, and later denied renewal and reargument. On a prior appeal, the Appellate Division held that the notice of pendency should have been canceled because the parties had irrevocably waived any right to file a lis pendens in their contract rider. The appellate court also awarded the plaintiff 'one bill of costs,' but denied costs under CPLR 6514(c) and denied sanctions. After that decision, the plaintiff submitted a bill seeking $250 in appellate costs, $6,135.54 in digital appellate printing-related expenses, and $300 paid to the Nassau County Clerk to cancel the notice of pendency.
Lower Court Decision
The Supreme Court granted the defendants' motion under CPLR 5015(a) [rule permitting relief from a judgment or order] to vacate the portions of the November 12, 2024 judgment that awarded the plaintiff $6,135.54 in printing expenses and $300 in notice-of-pendency cancellation fees. It reasoned that the prior appellate award of 'one bill of costs' did not include disbursements and that the plaintiff was entitled only to the $250 statutory appellate cost.
Appellate Division Reversal
The Appellate Division modified the order and judgment. It held that its earlier award of 'one bill of costs' did include disbursements because 22 NYCRR 1250.16(b) provides that, absent a contrary direction, appellate costs include disbursements under CPLR 8301(a). The court further held, as a matter of first impression for the department, that expenses for preparing and submitting a required digital appellate record and briefs—such as electronic bookmarks, hyperlinks, digital file conversions, and uploads—qualify as taxable printing expenses under CPLR 8301(a)(6). Accordingly, it reinstated the $6,135.54 award. However, it affirmed the vacatur of the $300 cancellation fee. Although Nassau County's block-fee statute allowed the clerk to charge the fee notwithstanding CPLR 8021(a)(10), the court concluded that the plaintiff had not shown the fee was taxable as an unenumerated expense under CPLR 8301(a)(13), especially because the prior appeal had rejected claims of bad faith and sanctions relating to the notice of pendency.
Legal Significance
This decision establishes in the Appellate Division, Second Department, that when appellate rules require digital filing, reasonable vendor charges necessary to create compliant electronic records and briefs may be taxed as printing disbursements under CPLR 8301(a)(6). It also clarifies that an award of appellate costs generally includes disbursements unless the court says otherwise, but that unusual expenses tied to notice-of-pendency cancellation will not automatically be recoverable under CPLR 8301(a)(13).
In New York appellate practice, required digital brief and record preparation costs can be taxable disbursements, but a separate clerk's fee to cancel a notice of pendency is recoverable only if a specific legal or discretionary basis supports it.