Opinion
2018–00880 Index No. 27290/05
10-07-2020
Christina GIASEMIS, respondent v. Peter GIASEMIS, appellant.
Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn, NY, for appellant. Cassandra & Gullo, PLLC, Brooklyn, N.Y. (Jennifer M. Cassandra of counsel), for respondent.
Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn, NY, for appellant.
Cassandra & Gullo, PLLC, Brooklyn, N.Y. (Jennifer M. Cassandra of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by a judgment dated September 6, 2007, the defendant appeals from an order of the Supreme Court, Kings County (Eric I. Prus, J.), dated August 1, 2017. The order granted the plaintiff's cross motion for an award of attorney's fees to the extent of awarding the plaintiff attorney's fees in the sum of $7,500.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiff's cross motion for an award of attorney's fees is denied in its entirety.
The facts underlying this appeal are set forth in our decision and order on a previous appeal (see Giasemis v. Giasemis, 139 A.D.3d 794, 32 N.Y.S.3d 254 ).
The defendant filed a motion for certain relief, which is not at issue in this appeal. In November 2016, the plaintiff cross-moved for an award of attorney's fees in the amount of $20,011.97. The plaintiff subsequently amended the request set forth in her cross motion to seek an award of attorney's fees in the amount of $26,622.45. In an order dated August 1, 2017, the Supreme Court granted the plaintiff's cross motion to the extent of awarding her attorney's fees in the sum of $7,500. The defendant appeals.
"The decision to award an attorney's fee in a matrimonial action ‘lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as the trial court's is’ " ( Tarantina v. Gitelman, 136 A.D.3d 663, 663, 25 N.Y.S.3d 241, quoting O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712 ; see Domestic Relations Law § 237 ; Licostie v. Licostie, 171 A.D.3d 1153, 96 N.Y.S.3d 889 ). "The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former" ( Brockner v. Brockner, 174 A.D.3d 567, 568, 107 N.Y.S.3d 36 ; see Prichep v. Prichep, 52 A.D.3d 61, 64–65, 858 N.Y.S.2d 667 ). "In exercising [its] discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation" ( Piccininni v. Piccininni, 176 A.D.3d 880, 881, 107 N.Y.S.3d 873 ; see Jankovic v. Jankovic, 170 A.D.3d 1134, 1135, 94 N.Y.S.3d 871 ; Prichep v. Prichep, 52 A.D.3d at 65, 858 N.Y.S.2d 667 ).
Here, considering the equities and circumstances of this case, including the parties' respective financial positions, the fact that they both engaged in extensive motion practice and settled their differences without a hearing, and the plaintiff's failure to demonstrate that she was financially unable to compensate her counsel, we find that the Supreme Court improvidently exercised its discretion in awarding attorney's fees to the plaintiff (see Domestic Relations Law § 238 ; see e.g. Evelyn v. Evelyn, 168 A.D.3d 911, 912–913, 90 N.Y.S.3d 554 ; cf. Candea v. Candea, 173 A.D.3d 663, 667, 104 N.Y.S.3d 637 ; Gahagan v. Gahagan, 172 A.D.3d 1008, 1010, 101 N.Y.S.3d 116 ).
RIVERA, J.P., AUSTIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.