Opinion
Argued February 16, 1981
Decided March 26, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN EVANS, J.
Stephen A. Weinstein for respondent-appellant.
Sidney Dickstein, Charles W. Saber and Richard P. Perrin for appellant-respondent.
MEMORANDUM.
The order of the Appellate Division should be modified to strike that portion of the order which awarded costs to the plaintiff in the trial court, and, as so modified, affirmed, with costs to the plaintiff on this appeal.
We agree with the Appellate Division, for the reasons stated in the memorandum of that court that the trial court erred in setting aside the jury verdict. We note, however, that the Appellate Division improperly awarded costs in all courts in contravention of CPLR 8102 (subd 1). That statute provides that in an action brought in Supreme Court, New York County, there may be no award of costs to a plaintiff who recovers less than $6,000. Therefore, although the Appellate Division had authority to assess costs against defendant on the appeal (CPLR 8107), the order of that court must be modified. This, of course, is not to say that despite this limited denial of costs the plaintiff may not recover his necessary disbursements in all courts (CPLR 8301, subd [c]).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order modified in accordance with the memorandum herein, and, as so modified, affirmed, with costs to plaintiff.