Opinion
O-00425/18 O-00426/18
11-04-2021
In the Matter of Kathryn K. Also Known as Katrhyn K., Petitioner-Respondent, v. Derek S., Respondent-Appellant. Appeal No. 14086 No. 2020-00524
Law Offices of Daniel A. Singer, New York (Daniel A. Singer of counsel), for appellant. Freshfields Bruckhaus Deringer U.S. LLP, New York (Elena Hadjimichael of counsel), for respondent.
Law Offices of Daniel A. Singer, New York (Daniel A. Singer of counsel), for appellant.
Freshfields Bruckhaus Deringer U.S. LLP, New York (Elena Hadjimichael of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Kapnick, González, Shulman, JJ.
Order, Supreme Court, New York County (Tandra L. Dawson, J.), entered on or about November 27, 2019, which, after a hearing, granted petitioner's motion for reasonable counsel fees in the amount of $28,583.96 in connection with a petition alleging violation of an order of protection, unanimously affirmed, without costs.
Following respondent's agreement to settle the violation petition by consenting to a two-year extension of the order of protection with certain modifications, the court providently exercised its discretion in granting petitioner's application for an award of counsel fees (see Mastrandrea v Mastrandrea, 268 A.D.2d 293, 294 [1st Dept 2000]; Family Ct Act §§ 841, 842[f]). We perceive no basis upon which to disturb the court's findings following a hearing at which petitioner's counsel testified concerning her experience, billing rate and the work performed, and petitioner testified concerning her sources of income.
Respondent's argument that a hearing and a finding of willfulness was required prior to the imposition of counsel fees under Family Ct Act § 846-a is unpreserved, as it is raised for the first time on appeal (see Matter of Nakia C. v Johnny F.R., 132 A.D.3d 531, 532 [1st Dept 2015]), and we decline to review it in the interests of justice. Respondent acknowledged that an award of reasonable counsel fees was available under Family Ct Act § 841, so that petitioner did not have an opportunity to oppose the argument or to choose not to proceed to agree to settle the violation petition. In any event, the court properly concluded that Family Ct Act §§ 841 and 842(f) allow for imposition of counsel fees under these circumstances, which included that the court extended and modified the order of protection (see Matter of Linda D. v Peter D., 152 Misc.2d 564 [Fam Ct, Westchester County 1991]; see generally Matter of Rogers v Rogers, 161 A.D.2d 766, 767 [2d Dept 1990]).
The Decision and Order of this Court entered herein on June 17, 2021 is hereby recalled and vacated (see M-2750 decided simultaneously herewith).