(a) Action brought for benefit of municipal corporation. Costs awarded to the defendant in an action brought by the state for the benefit of a municipal corporation shall be awarded against the municipal corporation and not against the state.
§ 8109.Defendant’s costs against the state
Article 81. Costs Generally · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 8109 directs how a defendant's costs are charged and paid when the state, or a public officer suing on its behalf, is the losing plaintiff, distinguishing suits brought for a municipal corporation's benefit from other state suits.
Full Text of CPLR 8109
(b) Payment of defendant’s costs against the state. Where costs are awarded to the defendant and against the state in an action brought by a public officer, and the proceedings have not been stayed, the comptroller shall draw his warrant upon the treasurer for the payment of the costs out of any money in the treasury appropriated for that purpose, upon the production to him of an exemplified copy of the judgment or order awarding the costs, a copy of a taxed bill of costs and a certificate of the attorney-general to the effect that the action was brought pursuant to law. The fees of the clerk for the exemplified copy shall be certified thereupon by him and included in the warrant.
Plain-English Summary
CPLR 8109 addresses two distinct situations that arise when the state, rather than a private plaintiff, is on the losing end of costs. Under subdivision (a), if the state sues for the benefit of a municipal corporation and the defendant is awarded costs, those costs are charged against the municipal corporation, not against the state itself.
Under subdivision (b), when a public officer brings the action and the defendant is awarded costs against the state, and the proceedings have not been stayed, the section lays out the payment mechanism: the comptroller draws a warrant on the treasurer to pay the costs from appropriated funds, upon production of an exemplified copy of the judgment or order, a copy of the taxed bill of costs, and a certificate from the attorney general confirming the action was brought pursuant to law. The clerk's fee for the exemplified copy is included in the warrant.
Together, the two subdivisions make clear who pays when a defendant wins costs against a state-initiated action, and how that payment gets processed through the state's own financial machinery.
Frequently Asked Questions
Who pays a defendant's costs when the state sues for a municipal corporation's benefit?
The municipal corporation, not the state, under CPLR 8109(a).
How does a defendant collect costs awarded against the state in a public officer's action?
Through a comptroller's warrant on the treasurer, issued upon an exemplified copy of the judgment or order, a taxed bill of costs, and an attorney general's certificate that the action was brought pursuant to law.
Does CPLR 8109 apply if the proceedings have been stayed?
Subdivision (b) applies where costs are awarded against the state and the proceedings have not been stayed.
What is a municipal corporation for purposes of CPLR 8109?
The section does not define the term itself; it relies on the general meaning used elsewhere in the Consolidated Laws, covering entities such as counties, towns, cities, and villages.
Does CPLR 8109 cover actions brought by the state in its own right, not through a public officer?
Subdivision (b), by its terms, addresses an action brought by a public officer and is directed at that specific payment mechanism against the state.
Who certifies that the underlying action was properly brought before the comptroller pays?
The attorney general provides the certificate confirming the action was brought pursuant to law.
Advisory Committee Notes
Subd (a) of this section is CPA § 1496, without change in substance. The word “municipality” has been changed to “municipal corporation.” A “municipal corporation” is defined in § 2 of the General Municipal Law as a county, town, city or village. This definition is not exclusive, however, since for limited purposes a municipal corporation also includes other governmental units. For example, under § 3-a of the General Municipal Law, “municipal corporations” include also school districts, pension or retirement systems and special or public districts. Under CPA § 1498, moreover, it has been held that the Board of Education of the city of New York is a municipal corporation. See Rucker v Board of Education, 172 Misc 731, 16 NYS2d 112 (Sup Ct 1939); Caldwell v Board of Education, 127 Misc 492, 216 NY Supp 501 (Sup Ct 1926). The word “action” in the provision includes both actions and special proceedings. See § 103(b).
Subd (b) is based upon CPA § 1494. The section apparently applied only in actions where the state is the plaintiff, and it has been reworded to so indicate. No change in substance has been made. CPA § 1495 has been deleted. It provided that costs awarded to the defendant in an action brought by the state on the relation of a private person should have been awarded against the relator in the first instance, and against the state if an execution against the relator was returned unsatisfied. Since § 1302 requires the relator to give an undertaking for costs in such a situation, the defendant is amply protected. Moreover, there seems no reason why the state should be liable for costs in any event. CPA § 1481 was apparently intended to avoid “dummy” plaintiffs, who were not responsible for costs. The problem does not seem significant and the section has accordingly been omitted. CPA § 1501 was apparently a statement of the substantive common law and it is also omitted with no intent to change the law. Similarly, CPA §§ 1503 and 1521 have been omitted as unnecessary, since special statutes would control over the general rules contained in articles 81 to 85. CPA § 1498 has also been deleted. The section provided that no costs should have been awarded to the plaintiff in an action against a municipality unless the claim upon which the action was based was presented ten days before the action was commenced. Its predecessor has been held inapplicable to actions in tort. See Gage v The Village of Hornellsville, 106 NY 667, 12 NE 817 (1887). The section was also expressly limited to actions for a sum of money. The committee believes that CPA § 1498 serves little purpose; its function has been amply covered by the many provisions in the Consolidated Laws and in city charters which require a notice of claim as a condition precedent to commencing an action. See, e.g, Town Law § 67; Highway Law § 215; County Law § 52; Second Class Cities Law § 244; see also Gen Munic Law § 50-e. For an analysis of notice of claim provisions in the charters of 62 cities of the state, as of 1943, see 9 NY Jud Council Rep 246–58 (1943). CPA § 1497 which precluded costs in certain actions against school officials has also been deleted. It appears with negligible wording differences as § 3810 of the Education Law. The actions to which it referred were apparently those set forth in § 310 of the Education Law, and its purpose was to encourage proceedings before the commissioner in those cases where such proceedings were not the exclusive remedy.
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: defendant costs against the state New Yorkcosts against municipal corporation CPLRcomptroller warrant costs New Yorkpublic officer action costs against stateCPLR 8109 attorney general certificate