“This negligence action seeks damages for injuries sustained by decedent when she fell on defendants’ premises in the City of Binghamton, Broome County. On the morning that the trial was scheduled to commence, defendants’ counsel appeared and requested an adjournment on the ground that he was ill and unable to proceed. Supreme Court granted the adjournment. Plaintiffs then moved for costs, seeking reimbursement for cancellation fees paid to two experts who had been scheduled to testify at trial. The court granted the motion, directing defendants to reimburse plaintiffs in the amount of $6,900. Defendants appeal.”
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“In sum, Supreme Court premised the award of costs solely upon the harm caused to plaintiffs by the cancellation fees, rather than any type of misconduct by defendants or their counsel. Although the concern is understandable, for the reasons stated above the governing rules do not authorize the award, and no sound alternative basis has been enunciated. Accordingly, the order must be reversed. Defendants’ remaining arguments are rendered academic by this determination.”
It should be noted that the issue here was not bad faith or santionable conduct; rather, it was a defense attorney who was ill or otherwise not ready to proceed. The court this nullified a judgment for costs
