Ardillo v. Goldblatt — 72 Misc. 2d 471

Majority

p. 471

Samuel Ardillo, Plaintiff, v. Marvin Goldblatt, Doing Business as Veterans Auto Parts, Defendant.

City Court of Rochester,

December 26, 1972.

Anthony F. Bonadio for plaintiff. Maas, Weinstein, Hutchings $ Vulto (Leonard E. Maas of counsel), for defendant.

Plaintiff sues for the sum of $234.15 in the regular civil branch of this court. The matter is duly arbitrated, and subsequently tried de novo, at which time plaintiff receives a decision in its favor for the previously mentioned amount. Plaintiff now seeks extraordinary items in its bill of costs in the sum of $190.80. This figure represents service of subpoenas and expert testimony at both the arbitration proceeding and City Court trial.

Defendant now moves for a review of the taxation of such bill of costs and for an order disallowing the extraordinary items.

Plaintiff relies on CPLR 8301 (subd. [d]) and CPLR 8301 (subd. [a], par. 12) to justify its request. Both of these sections leave it within the court’s discretion to allow for the type of recovery sought herein. (See Janusz v. Fallon, 61 Mise 2d 608, ■fill, and the cases and authority cited therein.)

The policy of this court is and always has been to encourage the trial of all small claim matters in Small Claims part. To

p. 472

award plaintiff extraordinary costs which could well have been avoided if the action had been commenced in Small Claims Court would be to fly in the face of that policy.

Therefore, the court, exercising its discretionary power, will disallow the extraordinary items taxed by the clerk on plaintiff’s bill of costs.