Medical Arts Office Services, Inc., Respondent, v. St. Paul's Realty Corp., Appellant

Medical Arts Office Services, Inc., Respondent, v St. Paul’s Realty Corp., Appellant. [MAJORITY] by defendant from an order of the Supreme Court, Nassau County, dated May 8,1978, which denied its motion, inter alia, to direct the plaintiff or the Sheriff of Nassau County to pay the defendant $2,797.17 for poundage advanced. Order reversed, without costs or disbursements, and matter remanded to Special Term for retaxation of costs and disbursements in the action in accordance herewith, by a Justice other than the one from whose order the appeal emanates. The delay in making this motion for reimbursement of costs expended by the defendant corporation, which ultimately prevailed at trial, does not give rise to a defense of waiver or laches. The record indicates that defendant changed its attorney during this period of eight months and the new attorney first sought reimbursement from the Sheriff. Moreover, plaintiff was on notice from a prior order of Special Term that defendant would be entitled to reimbursement of costs if it secured a verdict in its favor. Lazer, J. P., Gulotta, Cohalan and Gibbons, JJ., concur.