Opinion
2011-10-4
NING–YEN YAO, Plaintiff–Respondent,v.KAREN KAO YAO, Defendant–Appellant.
Chemtob Moss Forman & Talbert, LLP, New York (Nancy Chemtob of counsel), for appellant.Blank Rome LLP, New York (Caroline Krauss–Browne of counsel), for respondent.
Order, Supreme Court, New York County (Laura E. Drager, J.), entered October 29, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's cross motion for an award of interim counsel fees in this divorce action and sua sponte awarded plaintiff's counsel $10,000 in attorney's fees, unanimously modified, on the law and the facts, the
award of attorney's fees to plaintiff's counsel vacated, and otherwise affirmed, without costs.
The court properly denied defendant's cross motion. “While it is true that a party may be awarded interim counsel fees even when the party possesses his or her own assets, here defendant wife has made no showing at this time that [she] is unable to meet the cost of her counsel fees” ( Fisher v. Fisher, 208 A.D.2d 433, 433, 617 N.Y.S.2d 458 [1994][internal quotation marks and citations omitted] ).
Although that part of the court's order that sua sponte awarded attorney's fees to plaintiff's counsel is not appealable as of right ( Unanue v. Rennert, 39 A.D.3d 289, 831 N.Y.S.2d 904 [2007] ), in the interest of judicial economy, we deem the notice of appeal to be a motion for leave to appeal, and grant leave ( see Kremen v. Benedict P. Morelli & Assoc., P.C., 80 A.D.3d 521, 916 N.Y.S.2d 44 [2001] ).
Although a court, in its discretion, may award attorney's fees during a pendency of a matrimonial action ( see Domestic Relations Law § 237[a] ), neither plaintiff nor his counsel sought such an award. Nor does the record contain any supporting documentation or other evidence establishing services rendered, fees paid, time expenditures or other relevant information ( see Horowitz v. Horowitz, 63 A.D.3d 1001, 881 N.Y.S.2d 479 [2009]; Diamond v. Diamond, 290 A.D.2d 270, 735 N.Y.S.2d 542 [2002] ). While a court may, upon its own initiative, impose attorney's fees under Rule 130, here the court did not explain the reasons why the amount awarded was appropriate (22 NYCRR 130–1.2). Accordingly, the award of attorney's fees to plaintiff's counsel is vacated.
ANDRIAS, J.P., FRIEDMAN, RENWICK, RICHTER, MANZANET–DANIELS, JJ., concur.