The right to recover costs on appeal exists only by virtue of statutory authority. Common-law courts have no inherent power to award them.1 “At common law neither costs nor disbursements were allowed to the prevailing party in any case, and their allowance has always been regulated by statute.”2 Since costs were unknown and not recoverable at common law, they were not included in the judgment of the case.

In New York, costs are recoverable under CPLR §8107, “Costs upon appeal,” and CPLR §8108 directs that the “decision on appeal shall specify the disposition made in regard to costs.” CPLR §8107 provides, “The party in whose favor an appeal is decided in whole or in part is entitled to costs upon the appeal, whether or not he is entitled to costs in the action, unless otherwise provided by statute, rule or order of the appellate court. Where a new trial is directed upon appeal, costs upon the appeal may be awarded absolutely or to abide the event.”

Where a new trial is directed, courts generally make costs “abide the event,” which means the entry of a judgment in favor of the party seeking to tax costs.3 The party who ultimately prevails at the trial will then recover its costs for the retrial as well as for the prior appeal.4 However, appellate courts have broad discretion in deciding whether and, if so, to whom to award costs. Thus, where an appeal involved an issue that was “somewhat novel,” the Appellate Division, exercising its discretion, affirmed without costs.5

Denial of Costs

Generally, it is the prevailing party that is awarded its costs on appeal. However, CPLR 5528(e), “Content of briefs and appendices,” expressly authorizes the court to withhold or impose costs as a sanction where a party’s briefs are found wanting, either because they are too short to adequately address the issues6 or so overly verbose as to “constitute an unwarranted burden” upon the court.7 “Denial of costs based on defendants’ conduct is a proper exercise of the court’s discretion.”8

Other breaches of fundamental principles of appellate advocacy (and ethical advocacy in general) can also result in the imposition of costs as a sanction. For example, costs were imposed against a respondent that failed to bring to the court’s attention the reversal of a federal district court decision it had relied on in the court below; respondent’s counsel must have known of the reversal, since he was also counsel in the federal case.9 In another case, although defendant’s counsel succeeded in reinstating a verdict in favor of his client, the Appellate Division denied defendant costs because of its counsel’s “completely irresponsible and reprehensible” remark in summation that “That phony witness they bought, and I don’t know how he got to her” was an improper reflection on plaintiffs’ counsel without any basis in the record.10

Amount of Costs

The amount of costs is statutorily prescribed. Unless the court awards a lesser amount, $250 on appeals to the Appellate Division11 and $500 on appeals to the Court of Appeals.12 While these amounts may not seem like much, the party to whom costs on appeal are awarded is entitled to tax his necessary disbursements for “such other reasonable and necessary expenses as are taxable according to the course and practice of the court…”13 This has been held to include the cost of procuring the stenographic transcript and printing the record on appeal or appendix and briefs as taxable disbursements, where such fees are reasonable and necessary within the context of the litigation.14 In one case in which the author represented the prevailing appellant,15 the record on appeal was over 32 volumes and appellant’s briefs exceeded 150 pages. Taxable printing expenses were over $300,000.

While CPLR §8301(a)(6) permits the “reasonable expenses of printing the papers for a hearing, when required,” to be recoverable as a taxable disbursement, the word “required” means “the printing was necessitated in order to comply with a statute, rule of court or order issued by a court or referee.”16 Where a party “who is under no mandate to do so, but for what appears to be purely aesthetic reasons, has the record printed, it would be highly improper for th[e] court to impose the cost of such printing” as a taxable disbursement.17

Frequently an appeal will present novel issues of public importance that will be of great interest to persons other than the parties involved and counsel may anticipate receiving requests for copies of the record and briefs. If more than the required number of copies of the record or briefs are ordered, the additional expense will be disallowed as a taxable disbursement and stricken from the bill of costs.18

CPLR §8301(c) grants the court discretion (“may”) to allow taxation of disbursements by a party who has not been awarded costs in the action or on appeal but the exercise of that discretion is reviewable on appeal and may be overturned if found to have been an “unwise exercise of discretion.”19

In most instances, the single largest expense of successfully asserting or defending one’s legal rights on appeal is attorney fees, and these are not recoverable as costs or disbursements. Under the American legal system, attorney fees are merely “incidents of litigation,” not recoverable from one’s adversary in the absence of a contractual obligation or specific statutory authorization.20 Thus, it cannot be said in New York, as it was over a century ago in England where the loser still must pay the winner’s attorney fees as costs, that “there is one panacea which heals every sore in litigation, and that is costs.”21

When the appellate court denies costs without further explanation, simply saying “without costs,” that means without costs in that particular court and not in the court below.22 CPLR §8107 specifically permits the appellate court to make an independent determination with respect to the taxation of costs on an appeal, regardless of whether costs were awarded at the trial level pursuant to CPLR §8101.23

Taxation of Costs

If costs are awarded, the costs and disbursements are taxed by the clerk, upon application of the party entitled to costs, at the time the judgment is presented for entry. CPLR Article 84 (§§8401, et seq.) sets forth the procedure for taxation of costs. While costs may be taxed on giving at least five days’ notice to each adverse party interested in reducing the amount thereof together with a copy of the bill of costs, specifying the items in detail, and a copy of any supporting affidavits (CPLR §8402), costs may also be taxed ex parte (CPLR §8403), which is generally the practice in New York. If ex parte, the party who has taxed costs shall immediately serve a copy of the bill of costs upon each party entitled to notice under CPLR §8402. Within five days after such service, any party who was served may serve a notice of retaxation of costs upon five days’ notice to the party who has taxed the costs, specifying the item(s) as to which retaxation is sought.24

If a party is dissatisfied with the clerk’s determination on an application for retaxation of costs, its remedy is not to appeal from the judgment, but to make a motion, on notice, to the court to allow or disallow any item that was objected to before the clerk.25 An appeal questioning the taxation of costs will be dismissed.26 While the right to move for taxation of costs is not waived by taking an appeal from the judgment, even though that is not the proper remedy for challenging costs,27 the right to move for retaxation of costs may be lost through laches.28

It has been held that a “motion for a new taxation must be made to and heard by the Special Term on the same papers used before the clerk; it is in the nature of an appeal from the action of the clerk.”29 The court may then allow or disallow the item, or it may order a retaxation before the clerk, specifying the grounds or the proof upon which an item may be allowed or disallowed.30

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Endnotes:

1. Steinberg v. Mealey, 263 A.D. 479, 33 N.Y.S.2d 650, 652-653 (3d Dept. 1942).

2. Equitable Life Assur. Soc. v. Hughes, 125 N.Y. 106, 108 (1890).

3. Shabbona Creston Oil & Gas Corp. v. Doherty, 77 N.Y.S.2d 827, 828 (Sup. Ct. NY Co. 1944).

4. Casualty Company of America v. A. L. Swett Electric Light & Power Co., 121 Misc. 268, 200 N.Y.S. 796 (Sup. Ct. Orleans Co. 1923).

5. Powers v. Westchester Electric R. Co., 190 A.D. 912, 179 N.Y.S. 946 (2d Dept. 1919).

6. Tsomis v. Benenson, 23 A.D.2d 654, 257 N.Y.S.2d 894, 895 (1st Dept.), aff’d, 19 N.Y.2d 792, 279 N.Y.S.2d 733 (1965) (“No costs are allowed to the successful appellant because of the inadequacy of its brief.”).

7. Slater v. Gallman, 38 N.Y.2d 1, 5-6, 377 N.Y.S.2d 448, 450-451 (1975) (costs denied where 284-page brief “wanders aimlessly through myriad irrelevant matters of administrative and constitutional law, pausing only briefly to discuss the issues raised by this appeal. The brief pursues, in seemingly endless fashion, matters not properly before this court for the simple reason that they were not raised below…. These briefs neither assist our deliberations nor serve the best interests of his client. Although recognizing this to be a wholly inadequate sanction, at a minimum, costs should be imposed against the appellant.” See also, Schiff v. Loomer, 23 A.D.2d 481, 255 N.Y.S.2d 482 (1st Dept. 1965) (losing party awarded costs on appeal).

8. Matthews v. Schusheim, 80 Misc.2d 1057, 1059, 365 N.Y.S.2d 352, 354 (Sup. Ct. Nassau Co. 1975).

9. Amazon Coffee Co., Inc. v. Trans World Airlines, Inc., 111 A.D.2d 776, 778, 490 N.Y.S.2d 523, 525 (2d Dept. 1985) (“in light of defendant’s failure to draw this court’s attention to the reversal of the United States District Court’s decision in Denby v Seaboard World Airlines…, we are granting costs to the plaintiff. Defendant’s counsel, who relied on the lower court decision in Denby in his brief, was also counsel in the Denby case, and at the time the appeal in the instant case was submitted must have been, or should have been, aware of the reversal in Denby by the Second Circuit Court of Appeals several months earlier. There is no excuse for the failure to bring that fact to this court’s attention”.

10. Reilly v. Billy Blake Discount Dept. Stores, 39 A.D.2d 925, 926, 333 N.Y.S.2d 12, 13 (2d Dept. 1972).

11. CPLR §8203(a).

12. CPLR §8204.

13. CPLR §8301(12).

14. Shapiro v. Aetna Cas. & Sur. Co., 73 A.D.2d 616, 422 N.Y.S.2d 453, 454 (2d Dept. 1979).

15. Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 A.D.3d 128, 871 N.Y.S.2d 48, (1st Dept. 2008).

16. Lew Morris Demolition Co. v. Board of Education of the City of N.Y., 80 Misc.2d 944, 365 N.Y.S.2d 109, 110 (Civ. Ct. NY Co., 1974).

17. Ibid.

18. Matter of Jones, 17 Misc.2d 951, 191 N.Y.S.2d 543, 544 (Surr. Ct. Nassau Co. 1959).

19. Wood v. Wood, 23 A.D.2d 838, 259 N.Y.S.2d 670, 671 (1st Dept. 1965).

20. City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 262, 263, 321 N.Y.S.2d 345, 364 (1971).

21. Cropper v. Smith, 26 Ch.D. 700, 711 (1884).

22. DiTomasso v. Loverro, 276 N.Y. 681 (1938).

23. Savago v. Ulster County Bd. of Elections, 234 A.D.2d 777, 651 N.Y.S.2d 223, 224 (3d Dept. 1996).

24. CPLR §8403.

25. CPLR §8404; Empire Produce Co. v. Allen, 130 Misc. 155, 156, 223 N.Y.S. 599, 601 (Sup. Ct. Steuben Co. 1927) (“The only way in which the question of the correctness of the costs can be reached is by motion to retax under [CPLR §8404], or to correct the judgment; appeal from the judgment is not the proper remedy.”); Meyerson v. Weissman, 297 A.D. 952, 110 N.Y.S.2d 745, 747 (3d Dept. 1952).

26. Verga v. Scaduto, 99 A.D.2d 534, 471 N.Y.S.2d 321, 322 (2d Dept. 1984) (“Sweet failed to move for retaxation of costs before Special Term. Accordingly, we also dismiss that branch of the appeal.”).

27. Empire Produce Co. v. Allen, supra.

28. Empire Produce Co. v. Allen, supra.

29. Gebhardt v. West Seneca Fire Dist., 17 Misc.2d 971, 188 N.Y.S.2d 647, 649 (Sup. Ct. Erie Co.), aff’d, 9 A.D.2d 1019, 196 N.Y.S.2d 859 (4th Dept. 1959).

30. CPLR §8404.