HENRICKSEN v. TRAILS END COMPANY (2005)

In an action, inter alia, for a judgment declaring the extent of an easement over the plaintiffs' property, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Orange County (Byrne, J.H.O.), dated September 29, 2004, which, in effect, granted the defendants' motion, in effect, to compel the plaintiffs to reimburse the defendants for their expert witness fees pursuant to an oral directive of the court dated November 27, 2000, directing them to pay to the defendants the principal sum of $2,655.

ORDERED that the order and judgment is affirmed, with costs.

On November 27, 2000, the Supreme Court orally directed the plaintiffs to pay the defendants' expenses for producing an expert witness at trial (see CPLR 3126).   By motion dated February 20, 2004, the defendants moved, in effect, to compel the plaintiffs to reimburse the defendants for their expert witness fees pursuant to the oral directive.   The Supreme Court, in effect, granted the defendants' motion to the extent of directing the plaintiffs to pay the principal sum of $2,655 to the defendants for their expert witness fees.

The plaintiffs contend that the Supreme Court improperly, in effect, granted the motion because the defendants failed to timely submit a written order for signature pursuant to 22 NYCRR 202.48.   The time limit for submission of a proposed order for signature contained in 22 NYCRR 202.48 is not applicable in this case since the parties were never directed to settle or submit an order on notice (see Funk v. Barry, 89 N.Y.2d 364, 653 N.Y.S.2d 247, 675 N.E.2d 1199;  People v. Dame, 289 A.D.2d 997, 734 N.Y.S.2d 789;  Winckel v. Atlantic Rentals & Sales, 195 A.D.2d 599, 600 N.Y.S.2d 949;  Donovan v. DiPietro, 195 A.D.2d 589, 600 N.Y.S.2d 951).   Accordingly, the defendants' motion was properly, in effect, granted.