The Petitioners, William and Alice Johnson, brought a “ Notice of Motion to Vacate Three Clerk's Judgements ”¹ and requested the *2 imposition of costs and attorneys fees associated with making the instant motion. The Respondent, Eileen Kelly, the Assessor of the Town of Goshen, submitted an “ Affirmation ”² in opposition thereto.

The instant R.P.T.L. Article 7 proceedings were commenced in the years 1999, 2000 and 2001, respectively, and were, by Interlocutory Order of this Court [ Rosado, J ] dated March 20, 2003, consolidated for purposes of trial with subsequent proceedings brought relating to the same property for the years 2002, 2003 and 2004.

On October 31, 2005 the Petitioners made a pre-trial motion to preclude the use of Respondent's appraisal report at trial. The Petitioners, in their Reply Affidavit sworn to on November 7, 2005, stated, “ The Respondent is correct that the 1999-2001 proceedings are no longer in contention and should be deemed abandoned by the

Petitioner ”³. This Court deferred making any decision on that motion until after trial.

The remaining three R.P.T.L. Article 7 proceedings for the years 2002, 2003 and 2004 came before this Court for trial on November 29, 2005 and November 30, 2005.

On November 29, 2005, prior to the commencement of the trial, the Petitioners' counsel confirmed for the Court that Petitioners *3 would not be proceeding on tax years 1999, 2000 and 2001⁴.

Thereafter, Respondent made a motion to dismiss the Petitions for tax years 1999, 2000 and 2001 which was granted by the Court on consent⁵.

On December 29, 2005, after the conclusion of the trial, but before a decision on the merits, Respondent's counsel submitted to this Court three separate proposed judgements. Respondent moved for an order that the proceedings for 1999, 2000 and 2001 be dismissed with prejudice and that costs be allowed. Those proposed judgements contained provisions, in blank format, for the imposition of fees and costs⁶.

The Petitioners sent a letter to this Court dated February 2, 2006 pursuant to C.P.L.R. § 8404, in the nature of objections to the possible imposition of costs and fees relating to these proceedings since the matters had been withdrawn before the Court rendered any decision.

This Court did not sign Respondent's proposed judgements.

The Post Trial Decision & Order *4

On April 17, 2006 this Court rendered its Decision and Order determining the merits of the 2002, 2003 and 2004 R.P.T.L. Article 7 proceedings [ See Johnson v. Kelly, 11 Misc 3d 1081 ( Orange Sup.

2006 )].

On April 27, 2006, the Clerk of the Court for Orange County made and entered three separate judgements dismissing the proceedings for 1999, 2000 and 2001 and assessing fees and costs in the amount of $835.00 for each proceeding⁷.

The text of these new judgements is exactly the same as those submitted to this Court by Respondent's counsel on December 29, 2005 except that the date has been altered in pen to reflect a signature date of April of 2006 [ as opposed to January of 2006 as originally proposed ]. The blanks in the original proposed Orders reflecting costs and fees have been filled out in handwriting with a figure of $835.00 in each proceeding⁹.

The judgements were signed by an acting deputy clerk of the Supreme Court for Orange County in Goshen, New York notwithstanding that they each recite that they were signed at White Plains, New York.

C.P.L.R. § 8101: Costs In An Action *5

C.P.L.R. § 8101 states that “ The party in whose favor a judgement is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determined that to so allow costs would not be equitable, under all of the circumstances ”.

C.P.L.R. § 8301 states that “ (a) Disbursements in action or on appeal. A party to whom costs are awarded in an action or on appeal is entitled to tax his necessary disbursements for:... (b) Disbursements on Motion. Upon motion of any party made after the determination of a motion, or upon its own initiative, the court may allow any party thereto to tax as disbursements his reasonable and necessary expenses of the motion.”

It is this Court's determination that under all the circumstances herein, it would be inequitable to allow costs. Before the Respondent made its motion to dismiss the 1999, 2000 and 2001 proceedings the petitions for tax years 1999, 2000 and 2001 had been withdrawn.

In addition, when this Court refused to sign Respondent's December 29, 2005 proposed judgements, it should have been obvious to the Respondent that the Court's intention was not to dismiss the petitions with prejudice and not to allow costs. The record is clear that the 1999, 2000 and 2001 petitions were withdrawn by the Petitioners before the trial began, and that when the Respondent did move for dismissal after the fact, it was granted by the Court on consent. In fact, when the Court granted Respondent's motion to dismiss on consent, there was no discussion of costs.

It appears as though the Respondent was unhappy with this Court's refusal to sign its first set of proposed judgements and therefore chose to circumvent the Court's decision not to dismiss the petitions with prejudice and not to grant costs. The Respondent tried to accomplish this by presenting for signature to the Clerk of the Court for Orange County the very same judgements this Court refused to sign. The inequity of the Respondent's actions speaks for itself.

In addition, pursuant to C.P.L.R. § 8301, the Respondent is not entitled to disbursements since this Court has determined that costs will not be allowed. The Court will not allow disbursements, in any event, for the same equitable reasons set forth above for the disallowance of costs.

Accordingly, the Petitioners' motion is granted to the extent that the aforesaid judgements are vacated. The Petitioners' request for the imposition of costs and attorneys fees is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: October 16, 2006

White Plains, NY

HON. THOMAS A. DICKERSON

JUSTICE SUPREME COURT