Supreme Court, Appellate Division, Second Department, New York.
SELDEN PROPERTY ASSOCIATES, Respondent,
v.
TBS ENTERPRISES, INC., Appellant, et al., Defendant.
Dec. 4, 1978.
 Appeal was taken from an order of the Supreme Court, Suffolk County, Paul J. 
Baisley, J., in an action to compel the removal of an encroachment on 
plaintiff's real property and for damages.  The Supreme Court, Appellate 
Division, held that defendant was justified in refusing to execute stipulation 
until it had received a copy of all settlement documents; thus, imposition of 
costs against it was an improvident exercise of discretion.
 Reversed.
West Headnotes
Costs  48
102k48 Most Cited Cases
Party was justified in refusing to execute stipulation until it had received a 
copy of all settlement documents;  thus, imposition of costs against it was an 
improvident exercise of discretion.  CPLR 3217.
 **859 Dreyer & Traub, New York City (Samuel Kirschenbaum, New York City, of 
counsel), for appellant.
 Semon & Braverman, Jericho (Ronald B. Feingold, Jericho, on the brief), for 
respondent.
 Before COHALAN, J. P., and MARGETT, HAWKINS and O'CONNOR, JJ.
 MEMORANDUM BY THE COURT.
 *778 In an action to compel the removal of an encroachment on plaintiff's real 
property and for damages, defendant TBS Enterprises, Inc. appeals (1) as limited 
by its notice of appeal and brief, from so much of an order of the Supreme 
Court, Suffolk County, dated March 2, 1978, as, upon granting plaintiff's motion 
to discontinue the action and cancel the Lis pendens, awarded costs against it, 
(2) as limited by its brief, from so much of a further order of the same court, 
dated April 18, 1978, as, upon granting plaintiff's motion to cancel the notice 
of pendency, awarded costs against it and (3) from a judgment of the same court, 
entered April 25, 1978, which only awarded costs in favor of the plaintiff and 
against it.
 Orders reversed insofar as appealed from, and judgment reversed, on the law and 
the facts, without costs or disbursements, and no costs are to be imposed 
against appellant.
 TBS Enterprises, Inc. (appellant), a former owner and current purchase-money 
mortgagee of certain real property in Coram, **860 Suffolk County, was asked to 
join in a stipulation of discontinuance after a settlement was effected between 
the other parties to the within action with respect to an encroachment on 
plaintiff's premises.
 Appellant, as mortgagee, requested of plaintiff that a copy of the settlement 
instruments be sent to it, in order to ascertain if the security of its mortgage 
had been in any manner impaired.  It claimed that it never received all the 
closing papers; hence, by its attorney, it refused to sign the stipulation.
 Upon the factual circumstances of the case, we hold that the appellant was 
justified in refusing to execute the stipulation until it had received a copy of 
all the settlement documents and that the imposition of costs against it was an 
improvident exercise of discretion (see CPLR 3217).
410 N.Y.S.2d 859, 66 A.D.2d 778
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.
SELDEN PROPERTY ASSOCIATES, Respondent,v.TBS ENTERPRISES, INC., Appellant, et al., Defendant.

Dec. 4, 1978.

 Appeal was taken from an order of the Supreme Court, Suffolk County, Paul J. Baisley, J., in an action to compel the removal of an encroachment on plaintiff's real property and for damages.  The Supreme Court, Appellate Division, held that defendant was justified in refusing to execute stipulation until it had received a copy of all settlement documents; thus, imposition of costs against it was an improvident exercise of discretion.
 Reversed.

West Headnotes
Costs  48102k48 Most Cited Cases
Party was justified in refusing to execute stipulation until it had received a copy of all settlement documents;  thus, imposition of costs against it was an improvident exercise of discretion.  CPLR 3217. **859 Dreyer & Traub, New York City (Samuel Kirschenbaum, New York City, of counsel), for appellant.
 Semon & Braverman, Jericho (Ronald B. Feingold, Jericho, on the brief), for respondent.

 Before COHALAN, J. P., and MARGETT, HAWKINS and O'CONNOR, JJ.

 MEMORANDUM BY THE COURT.
 *778 In an action to compel the removal of an encroachment on plaintiff's real property and for damages, defendant TBS Enterprises, Inc. appeals (1) as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County, dated March 2, 1978, as, upon granting plaintiff's motion to discontinue the action and cancel the Lis pendens, awarded costs against it, (2) as limited by its brief, from so much of a further order of the same court, dated April 18, 1978, as, upon granting plaintiff's motion to cancel the notice of pendency, awarded costs against it and (3) from a judgment of the same court, entered April 25, 1978, which only awarded costs in favor of the plaintiff and against it.
 Orders reversed insofar as appealed from, and judgment reversed, on the law and the facts, without costs or disbursements, and no costs are to be imposed against appellant.
 TBS Enterprises, Inc. (appellant), a former owner and current purchase-money mortgagee of certain real property in Coram, **860 Suffolk County, was asked to join in a stipulation of discontinuance after a settlement was effected between the other parties to the within action with respect to an encroachment on plaintiff's premises.
 Appellant, as mortgagee, requested of plaintiff that a copy of the settlement instruments be sent to it, in order to ascertain if the security of its mortgage had been in any manner impaired.  It claimed that it never received all the closing papers; hence, by its attorney, it refused to sign the stipulation.
 Upon the factual circumstances of the case, we hold that the appellant was justified in refusing to execute the stipulation until it had received a copy of all the settlement documents and that the imposition of costs against it was an improvident exercise of discretion (see CPLR 3217).
410 N.Y.S.2d 859, 66 A.D.2d 778
END OF DOCUMENT