The Curious Procedure of Retaxing Costs

To the victor go the spoils—or so the saying goes. The old adage refers to the added perks and bonuses a person receives for winning something, like a contest or battle. Unlike some other legal systems, the American legal system does not entirely embrace this concept to its fullest extent when it comes to litigation. Here, for instance, litigants generally do not recover their attorney fees for winning, absent the application of some statutory or contractual right entitling them to such an award. In a sense, however, the American legal system does bestow upon the winner some modicum of "spoils" in the form of an award of costs and disbursements. Compared to an award of attorney fees, which monetarily could be very substantial, such an award is often viewed as a token gesture. However, in some instances, disbursements can be quite significant. They can also be improper.

As the unfortunate litigant aggrieved by a large and improper disbursement soon discovers, such a scenario can quickly turn what is often viewed as a perfunctory procedure rounding out the end of a lawsuit into a costly and time-consuming dispute in and of itself. The application of the Civil Practice Law and Rules (CPLR) process meant to address such an improper disbursement, known as "retaxation," tends only to compound the problem and convert what is meant to be a quick and purely ministerial act into a multi-layered and burdensome procedure.¹ And, at the end of the day, navigating the procedure may end up costing more in attorney fees than the challenged disbursement itself.

Costs and Disbursements