§ 8106.Costs upon motion

This section is based upon CPA § 1486. The provisions for costs on a reference have been omitted. To the extent that a reference is ordered upon motion of a party, such costs may be awarded upon the motion, and the necessity for a separate provision is questionable. A trial before a referee does not differ from a trial before the court in any way that would warrant such special treatment. Moreover, the costs to be awarded were limited by CPA § 1505 to ten dollars, a sum so nominal that deletion of costs for a reference does not appreciably affect litigants or attorneys.

Indeed, the costs on a motion were seldom collected because of their nominal amount. Unless extensive disbursements had been incurred, an attorney would waive costs knowing that his adversary would pay them himself rather than explain to his client that they were being taxed because he lost a motion. For the prevailing party, they represented such a small part of the expense in the action that there was always acquiescence in such a waiver. It is doubtful that the increased amount in § 8102 will alter this situation appreciably.

CPA § 1487, which provided for costs upon an application for judgment on a pleading as frivolous, has been deleted as unnecessary since, under the new CPLR, the former motion to dismiss a pleading as frivolous (see RCP 103, 104) has been deleted. Cf. rules 3024, 3212. Nevertheless, CPA § 1487 served to point out a difficulty with the costs provisions. To the extent that CPA § 1487 implied that costs in such a case were limited to the amount granted on a motion rather than the amount which would have been included in the judgment, it was misleading. Motion costs might apparently have been awarded on a motion which resulted in a judgment, in addition to the usual action costs awarded upon entry of the judgment. The provisions of CPA §§ 1504 and 1504-a for the amount of costs in actions before trial might thus have been enhanced with motion costs when the action was terminated by a motion just as they were enhanced with trial costs if a trial was necessary.

It is possible that the sole purpose of CPA § 1487 was to confirm that an “application,” at least in this instance, was the same as a “motion.” See CPA § 113. In drafting the new provisions, the word “application” has been replaced by the word “motion” wherever appropriate in order to avoid the ambiguity of the former word. While a motion is defined as an application for an order in both § 2211 and CPA § 113, it includes an application for judgment under both. See, e.g., R Civ P 106, 107, 110, 113; rules 3211, 3212 and 3213.

This section also replaces the next to last sentence in former rule 66 which provided for costs on a defaulted motion.

CPA § 1488 provided that costs on a motion to strike scandalous matter from a pleading might have been charged personally against the attorney whose name appeared on the pleading, and that his failure to pay such costs was punishable as a contempt. A court would appear to have inherent power to punish an attorney for scandalous conduct, such as the insertion of scandalous matter in a pleading. Cf. Allen v Fink, 211 App Div 411, 207 NY Supp 428 (4th Dep’t 1925). The only thing that CPA § 1488 achieved by taxing the costs against the attorney was to save his client from paying them; in any case they were paid to the moving party. Since costs on a motion were limited to a maximum of ten dollars under former law, however, not only did the provision impose a negligible penalty on the attorney, but it offered little saving to his client. Indeed, in practice, even without the provision, the attorney would undoubtedly have paid the costs, in the rare case where his adversary so requested, simply to avoid embarrassment before his client. The section has therefore been deleted.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963.