Opinion
2018–06736 Index No. 202381/15
07-03-2019
Dina V. CARLUCCI, Respondent, v. Joseph M. CARLUCCI, Appellant.
Long Tuminello, LLP, Bay Shore, N.Y. (Karen S. Svendsen of counsel), for appellant. Aiello DiFalco & Gianakos LLP, Garden City, N.Y. (Michael DiFalco of counsel), for respondent.
Long Tuminello, LLP, Bay Shore, N.Y. (Karen S. Svendsen of counsel), for appellant.
Aiello DiFalco & Gianakos LLP, Garden City, N.Y. (Michael DiFalco of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The parties were married in 2006, and in 2015 the plaintiff commenced this action for a divorce and ancillary relief. In 2017, the parties entered into a stipulation of settlement, settling all issues except the issue of counsel fees, which they agreed would be determined on motions. The parties then each moved for an award of counsel fees. The Supreme Court granted the plaintiff's motion, awarding her counsel fees in the total sum of $37,370, and denied the defendant's motion. The defendant appeals.
In matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory "rebuttable presumption that counsel fees shall be awarded to the less monied spouse" ( Domestic Relations Law § 237[a] ; see L 2010, ch 329, §§ 1, 3; Weidman v. Weidman , 162 A.D.3d 720, 726, 78 N.Y.S.3d 371 ). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case" ( DeCabrera v. Cabrera–Rosete , 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 ). In addition, the court may take into account whether either party has delayed the proceedings or engaged in unnecessary litigation (see Weidman v. Weidman , 162 A.D.3d at 726, 78 N.Y.S.3d 371 ; Margolis v. Cohen , 153 A.D.3d 1390, 1393, 61 N.Y.S.3d 328 ).
Here, we agree with the Supreme Court's determination that the defendant was the monied spouse, and, considering the overall financial circumstances of the parties and the defendant's conduct during the course of litigation, the court providently exercised its discretion in awarding the plaintiff counsel fees in the total sum of $37,370, and in denying the defendant's motion for counsel fees (see Morille–Hinds v. Hinds , 169 A.D.3d 896, 94 N.Y.S.3d 336 ; Bruzzese v. Bruzzese , 152 A.D.3d 563, 566, 61 N.Y.S.3d 18 ).
MASTRO, J.P., BALKIN, ROMAN and CONNOLLY, JJ., concur.