Williams v. Williams

McGuire, J.,

dissents in part in a memorandum as follows: I agree that the order from which plaintiff-appellant appeals should be affirmed and with the majority’s reasoning. I write separately, however, because I would award costs on this appeal to defendant-respondent.

The appellant presses two claims for setting aside the so-ordered stipulation the parties entered into in open court when both were represented by counsel: mutual mistake of fact and the absence of an acknowledgment. Both of these claims are wholly devoid of merit and at least border on the frivolous. While I recognize that we generally do not award costs in matrimonial appeals, we certainly do award costs in some matrimonial appeals (see e.g. Selinger v Selinger, 44 AD3d 341 [2007]; Dvir v Dvir, 41 AD3d 217 [2007]; Kesten v Weingarten, 40 AD3d 546 [2007]; Hearst v Hearst, 40 AD3d 269 [2007], lv denied 10 NY3d 708 [2008]; Nimkoff v Nimkoff, 39 AD3d 292 [2007]; Mars v Mars, 39 AD3d 232 [2007]; Vorburger v Vorburger, 37 AD3d 178 [2007]; Grant v Grant, 37 AD3d 167 [2007]). Having prevailed on this appeal, respondent should be awarded costs (see CPLR 8107) as partial compensation for the costs he needlessly incurred in responding to appellant’s baseless even if not frivolous claims. To not award costs, moreover, is unfair to the litigants in matrimonial appeals who are required to pay costs when they fail to prevail on claims that are more substantial than those pressed by appellant on this appeal.