| Glacial Aggregates LLC v Town of Yorkshire |
| 2011 NY Slip Op 04877 [85 AD3d 1591] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| Glacial Aggregates LLC, Respondent, v Town of Yorkshire,Appellant. |
—[*1] Magavern Magavern Grimm LLP, Niagara Falls (Sean J. Mackenzie of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Cattaraugus County (Larry M. Himelein,A.J.), entered June 15, 2010. The judgment awarded plaintiff attorneys' fees and disbursements inthe amount of $69,822.89.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from a judgment awarding plaintiff, inter alia, attorneys'fees pursuant to 42 USC § 1988 (b) as the prevailing party on the cause of action seekingdamages pursuant to 42 USC § 1983. We affirm. According to plaintiff, defendant violatedits due process rights pursuant to the Fourteenth Amendment of the United States Constitution bydepriving plaintiff of its vested right to mine the property in question. Following a jury trial,plaintiff was awarded damages. This Court reversed the judgment, granted defendant's motionfor a directed verdict and dismissed the 42 USC § 1983 cause of action (Glacial Aggregates LLC v Town ofYorkshire, 57 AD3d 1362 [2008], revd 14 NY3d 127 [2010]). The Court of Appeals, however,determined that plaintiff had established a vested right to mine the property, and it thereforereversed our order and remitted the matter to this Court for consideration of the issues raised butnot determined on the appeal to this Court (Glacial Aggregates LLC v Town ofYorkshire, 14 NY3d 127 [2010], rearg denied 14 NY3d 920 [2010]). Upon remittiturfrom the Court of Appeals, we rejected defendant's remaining contentions and affirmed thejudgment (Glacial Aggregates LLC vTown of Yorkshire, 72 AD3d 1644 [2010], appeal dismissed 16 NY3d 760[2010]). Thus, contrary to defendant's contention, plaintiff is a prevailing party pursuant to 42USC § 1988 (see generally Matter of Johnson v Blum, 58 NY2d 454, 457-459[1983]).
Contrary to the further contention of defendant, we conclude that plaintiff's motion forattorneys' fees pursuant to 42 USC § 1988 was timely inasmuch as it was filedapproximately 2½ months after the judgment on the verdict was filed and approximatelytwo months after Supreme Court denied defendant's motion to set aside the verdict (seegenerally Felder v Foster, 86 AD2d 766 [1982]).[*2]
We note that plaintiff filed the judgment for, inter alia,attorneys' fees with the Cattaraugus County Clerk more than two years following the court'sdecision on the motion (see 22 NYCRR 202.48 [a]). We nevertheless further concludethat plaintiff did not abandon its motion seeking attorneys' fees. We take judicial notice of thefact that the appeal process continued until approximately six weeks before the judgment wasfiled (Glacial Aggregates LLC, 72 AD3d 1644), and we note that plaintiff was notentitled to the fees as a prevailing party pursuant to 42 USC § 1988 until that process wasconcluded. We therefore conclude that plaintiff had good cause for its delay in filing thejudgment (see 22 NYCRR 202.48 [b]; see generally Farkas v Farkas, 11 NY3d 300, 308-309 [2008]). Inany event, we note that "the matter involves . . . [a] simple judgment for a sum ofmoney [that] speaks for itself . . . [and was properly] 'entered by the [County C]lerkwithout prior submission to the court' " (Funk v Barry, 89 NY2d 364, 367 [1996]), andthere is no time limit to file a judgment for a sum of money (see Farkas, 11 NY3d at309).
We reject defendant's contention that the award of attorneys' fees should be reduced. Theamount of reasonable attorneys' fees awarded pursuant to 42 USC § 1988 lies within thesound discretion of the trial court and will not be disturbed absent an abuse of that discretion (see Deep v Clinton Cent. School Dist.,48 AD3d 1125, 1126 [2008]), and that is not the case here. Present—Scudder, P.J.,Centra, Peradotto, Gorski and Martoche, JJ.