Ettelman & Hochheiser, P.C., Garden City, NY (Marc Sabow
of counsel), for appellant.
Berger, Huntington, NY, for respondents.
C. DILLON, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
action, inter alia, for declaratory and injunctive relief,
the defendant Frank M. Flower & Sons, Inc., appeals from
an order of the Supreme Court, Nassau County (Bucaria, J.),
entered November 25, 2015, which granted the plaintiffs'
motion pursuant to CPLR 8404 to disallow an item taxed by the
Nassau County Clerk in the sum of $69, 000 paid by the
defendant Frank M. Flower & Sons, Inc., to secure an
undertaking to stay enforcement of a judgment and directed
the Nassau County Clerk to amend the judgment from the sum of
$76, 133.30 to the sum of $7, 133.30.
that the order is reversed, on the law, with costs, and the
plaintiffs' motion pursuant to CPLR 8404 to disallow an
item taxed by the Nassau County Clerk in the sum of $69, 000
paid by the defendant Frank M. Flower & Sons, Inc., to
secure an undertaking to stay enforcement of a judgment and
to direct the Nassau County Clerk to amend the judgment from
the sum of $76, 133.30 to the sum of $7, 133.30 is denied.
matter arises out of a decision and order issued by this
Court on July 22, 2015 (North Oyster Bay Baymen's
Assn v Town of Oyster Bay, 130 A.D.3d 885) (hereinafter
the 2015 Decision), in connection with a dispute between the
defendant Frank M. Flower & Sons, Inc. (hereinafter
Flower), the plaintiff North Oyster Baymen's Association
(hereinafter the Association) and certain individual members
of the Association (hereinafter collectively the plaintiffs)
over the approval of a 30-year extension of underwater leases
issued to Flower by the defendant Town of Oyster Bay in
September 1994. Flower and its predecessor in interest have
been producers of shellfish, including clams and oysters,
since 1887. The Association is a not-for-profit corporation
organized to protect, promote, and preserve the hard clam
industry in and around Oyster Bay.
22, 2011, the plaintiffs commenced an action, inter alia, for
a judgment declaring the leases between Flower and the Town
null and void, and asserting 11 separate causes of action.
Flower and the Town separately moved pursuant to CPLR 3211(a)
to dismiss the amended complaint, arguing, inter alia, that
it failed to state a cause of action. The Supreme Court
entered a judgment on November 4, 2013 (hereinafter the 2013
Judgment), which, inter alia, vacated the 30-year lease
extension issued to Flower by the Town in September 1994,
remitted the matter to the Town to conduct a clam density
survey upon land leased to Flower, and dismissed the third,
fourth, fifth, sixth, and seventh causes of action.
Flower appealed from, inter alia, so much of the 2013
Judgment as vacated the 30-year lease extension issued to
Flower by the Town in September 1994. The plaintiffs
cross-appealed, among other things, from so much of the 2013
Judgment as dismissed the third, fifth, sixth, and seventh
causes of action. In a decision and order on motion dated
April 4, 2014, this Court granted Flower's motion to stay
enforcement of the 2013 Judgment pending the determination of
the appeal and cross appeal, directed that Flower post an
undertaking to secure the stay of the 2013 Judgment, and
remitted the matter to the Supreme Court, Nassau County, to
fix the amount of the undertaking (see Matter of North
Oyster Bay Baymen's Association v Town of Oyster
Bay, 2014 NY Slip Op 68608[U] [App Div 2d Dept]). In an
order entered May 19, 2014, the Supreme Court directed Flower
to secure an undertaking in the sum of $2, 300, 000.
Thereafter, Flower posted a bond in that amount and incurred
a cost of $69, 000 for the premium for the bond.
this Court, in the 2015 Decision, as relevant to this appeal,
modified the 2013 Judgment by deleting the provisions thereof
vacating the 30-year lease extension issued to Flower,
remitting the matter to the Town for the purpose of
conducting a clam density survey, and dismissing the seventh
cause of action (see North Oyster Bay Baymen's Assn v
Town of Oyster Bay, 130 A.D.3d 885). This Court also
awarded judgment to Flower on the first cause of action and
directed the plaintiffs to pay costs [and disbursements;
see CPLR 8301(a)] to Flower and the Town and
remitted the matter to the Supreme Court, Nassau County for
entry of a declaratory judgment consistent with the
August 2015, pursuant to CPLR 8301(a)(11), Flower taxed its
bill of costs in the total sum of $76, 133.30, which included
the cost of $69, 000 as the premium it had paid for the bond
to secure the undertaking as required to stay the enforcement
of the 2013 Judgment. Thereafter, the Nassau County Clerk
entered a judgment dated August 24, 2015, against the
plaintiffs in that amount. In September 2015, the plaintiffs
moved pursuant to CPLR 8404 to disallow the $69, 000 premium
on the ground that it was incurred in the trial court and not
in this Court and for an amended judgment to so reflect the
disallowance of that amount. On November 23, 2015, the
Supreme Court issued an order (hereinafter the November 2015
Order) disallowing the cost of the premium and directing that
an amended judgment be entered by the Nassau County Clerk in
the amount of $7, 133.30 (the total sum after subtracting
$69, 000). The court reasoned that because the 2013 Judgment
was modified and not reversed, CPLR 8404 did not apply and
Flower was not entitled to recover the $69, 000 premium.
Flower appeals from the November 2015 Order.
a court "is generally limited to the issues or defenses
that are the subject of the motion" if the motion is
dispositive of the underlying action (see Rosenblatt v
St. George Health & Racquetball Assoc., LLC, 119
A.D.3d 45, 52; Quizhpe v Luvin Constr., 70 A.D.3d
912, 914), a court may decide a nondispositive motion
"upon grounds other than those argued by the parties in
their submissions" where "the court's grant or
denial of relief is confined to the specific family of relief
sought in the motion" (Tirado v Miller, 75
A.D.3d 153, 154).
the Supreme Court was within its discretion in determining
the plaintiffs' motion on grounds not raised by the
parties, as the motion involved a discrete issue concerning
disbursements in accordance with CPLR 8301(a)(11) and was not
dispositive of the underlying action (see Tirado v
Miller, 75 A.D.3d at 154), and the court did not grant
relief that was not sought in the motion (see id.).
the Supreme Court improperly determined that the 2013
Judgment did not constitute a "judgment subsequently
reversed" in determining that the $69, 000 premium cost
sought by Flower pursuant to CPLR 8301(a)(11) was outside the
ambit of taxable disbursements to which Flower was entitled.
of costs and disbursements in an action and on appeal is
dependent on the statutory authorization set forth in CPLR
8301(a) et seq. (see Allied Excavating Corp v
Graves Equip. Co., 99 A.D.2d 499, 500). Here, CPLR
8301(a)(11) provides that a party may recover as a taxable
disbursement "the reasonable expenses actually incurred
in securing an undertaking to stay enforcement of a judgment
subsequently reversed" (CPLR 8301[a]). As an initial
matter, we note that the 2015 Decision addressed both
Flower's appeal and the plaintiffs' cross appeals.
Thus, contrary to the plaintiffs' contention, it is not
the nomenclature of the decretal paragraph of the 2015
Decision (decreeing that the 2013 Judgment is "modified,
... as so modified, the judgment is affirmed") that
controls for the purposes of determining whether an expense
incurred in connection with that appeal ...