Majority
—Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in awarding statutory costs to defendant in the absence of proof that it “would not be equitable, under all of the circumstances” (CPLR 8101; see, Olmstead v Federated Dept. Stores, 208 AD2d 979 , 982, lv denied 85 NY2d 811 ; cf., Govern & McDowell v McDowell & Walker, 75 AD2d 979 , 980). Although neither party recovered from the other, defendant is considered the prevailing party and is entitled to costs (see, Graybill v Van Dyne, 67 Misc 2d 228 ; 14 Weinstein-KornMiller, NY Civ Prac jj 8101.15, at 81-20). (Appeal from Order and Judgment of Supreme Court, Monroe County, Frazee, J.— Costs.) Present—Pine, J. P., Hayes, Wisner, Balio and Fallon, JJ.
Cases cited
- Olmstead v. Federated Department Stores, Inc. 208 AD2d 979 at 982 p. 1103
- McDowell v. McDowell & Walker, Inc. 75 AD2d 979 at 980 p. 1103
- Graybill v. Van Dyne 67 Misc 2d 228 p. 1103