Summary
In Schussler v Schussler (123 A.D.2d 618), the Appellate Division, Second Department, refused to uphold a lower court's award of counsel fees when such fees related to services provided in connection with an application for counsel fees.
Summary of this case from Matter of Elissa FOpinion
October 2, 1986
Appeal from the Supreme Court, Nassau County (Samenga, J.).
Order modified, on the law and in the exercise of discretion, by reducing the award of counsel fees awarded to the plaintiff from $9,345 to $1,500. As so modified, order affirmed, without costs or disbursements.
The plaintiff is entitled to an award of counsel fees for amounts expended in defense of the defendant's application for a change of custody of the parties' son (see, Domestic Relations Law § 237 [b]; Borakove v Borakove, 116 A.D.2d 683). She is not entitled, however, to an award of counsel fees for amounts expended in an attempt to obtain an award of counsel fees, since such counsel fees are not authorized by Domestic Relations Law § 237 (b) (cf. Hempstead Gen. Hosp. v Allstate Gen. Ins. Co., 106 A.D.2d 429, affd 64 N.Y.2d 958; Parkside Mem. Chapels v Garlick Funeral Homes, 61 A.D.2d 1028, lv denied 44 N.Y.2d 647). We have therefore deleted that portion of the award which represented counsel fees for obtaining an award of counsel fees.
The injunction imposed by Special Term was an appropriate judicial response under the circumstances (see, Gabrelian v Gabrelian, 108 A.D.2d 445, appeal dismissed 66 N.Y.2d 741). The defendant was properly enjoined from instituting further litigation until such time as all counsel fees awarded to the plaintiff, including those awarded in earlier proceedings, are paid.
We have reviewed the defendant's remaining contentions and have determined that they are without merit. Bracken, J.P., Brown, Weinstein and Rubin, JJ., concur.