Hondzinski v. County of Erie

Judgment unanimously affirmed, without costs, in accordance with the following memorandum: Having prevailed on two prior appeals to this court (Matter of Hondzinski v County of Erie, 85 AD2d 898; Hondzinski v County of Erie, 64 AD2d 864), petitioner was awarded costs in both proceedings (CPLR 8107). Petitioner reduced those awards to judgment by filing in the Erie County Clerk’s office on December 30, 1981. Subsequently, the Court of Appeals reversed our determination in the second appeal and dismissed the petition without costs. (Matter of Hondzinski v County of Erie, 57 NY2d 715). When petitioner attempted to satisfy his judgment pursuant to section 70 of the General Municipal Law, the county refused satisfaction, contending that the reversal of this court’s determination by the Court of Appeals included a reversal of the award of costs. After reversal of our determination by the Court of Appeals, the county could have moved for relief from the judgment for costs pursuant to CPLR 5015 (subd [a], par 5). Having failed to do that, the county and its agents have no choice but to follow the directive of this court (24 NY Jur 2d, Costs in Civil Actions, § 267, pp 242-243). (Appeal from judgment of Supreme Court, Erie County, Cook, J. — costs.) Present — Hancock, Jr., J. P., Denman, Green, O’Donnell and Schnepp, JJ.