Opinion
08-30-2024
JC, Plaintiff, v. LAC, Defendant.
Counsel for the Plaintiff Claire Cody Miller, Esq. Counsel for the Defendant: Grazia Marie Borrino, Esq., ABRAMS FENSTERMAN, LLP
Unpublished Opinion
Counsel for the Plaintiff Claire Cody Miller, Esq.
Counsel for the Defendant: Grazia Marie Borrino, Esq., ABRAMS FENSTERMAN, LLP
Ronald Castorina, Jr., J.
The following e-filed documents listed on NYSCEF (Motion #001) numbered 23-35, 46, 51-52 and (Motion #002) numbered 36-45, 47-50, 52, 56 were read on this motion.
All prongs of Motion Sequence No. 001 and Motion Sequence No. 002, except for the issues of (a) the Plaintiff's pension QDRO and (b) counsel fees, were resolved by on July 25, 2024, by short form order on consent. (NY St Cts Filing [NYSCEF] Doc No. 55; 56). Oral argument was waived on July 25, 2024. (see id). Upon the foregoing documents, Sequence No. 001 and Motion Sequence No. 002 are resolved and therefore, it is hereby, ORDERED, that Plaintiff's request for the Court to enter a Domestic Relations Order for distribution of Plaintiff's pension that excludes Defendant from receiving any disability benefits that Plaintiff may become entitled to is GRANTED, with prejudice and the Court will execute the Domestic Relation Order proposed by the Plaintiff (NY St Cts Filing [NYSCEF] Doc No. 29) contemporaneously with this Decision and Order, and it is further;
ORDERED, that Plaintiff's request for counsel fees is DENIED without prejudice to renew pending the submission of proper documentation, and it is further;
ORDERED, that Defendant's request for counsel fees is DENIED with prejudice, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
On May 17, 2023, Plaintiff and Defendant entered a stipulation of settlement resolving all issues of their matrimonial action (NY St Cts Filing [NYSCEF] Doc No. 28). On said date, the parties were allocated by the Court, an inquest was completed, the parties stipulation of settlement was entered into evidence as Plaintiff's Exhibit #1. (see id). This Court further granted a Judgment of Divorce to the parties on June 22, 2023. (NY St Cts Filing [NYSCEF] Doc No. 27). On April 2, 2024, Defendant filed via NYSCEF a proposed Qualified Domestic Relations Order with a Notice of Settlement date of April 19, 2024. On April 15, 2024, the parties filed a stipulation consenting to a stay until April 26, 2024, of the Domestic Relations Order for the distribution of the Defendant's interest in the Plaintiff's NYSLERS pension to provide an opportunity for Plaintiff to file an Order to Show Cause.
Plaintiff filed Post-Judgment Motion Sequence #001 by Order to Show Cause on April 26, 2024. All prongs of this Order to Show Cause, signed on April 29, 2024, have been resolved by a consent Order dated July 25, 2024 (NY St Cts Filing [NYSCEF] Doc No. 55; 56) except for prong (b) seeking the entry of a Domestic Relations Order for distribution of Plaintiff's pension that excludes Defendant from receiving any disability benefits that Plaintiff may become entitled to; and (h) seeking Defendant to pay Plaintiff's counsel fees incurred in connection with said motion.
Defendant filed opposition on May 13, 2024, by Notice of Cross-Motion No. 002 seeking (a) denial of the Plaintiff's Order to Show Cause and (b) counsel fees from the Plaintiff in the amount of $10,000.00. Plaintiff filed opposition to Cross-Motion Sequence No. 002 on May 24, 2024. Defendant did not file a reply, which would have been due by June 19, 2024, or deemed waived. (NY St Cts Filing [NYSCEF] Doc No. 51; 52). Oral argument was waived by the parties July 25, 2024. (NY St Cts Filing [NYSCEF] Doc No. 55; 56).
II. Facts
On May 17th, 2023, Plaintiff and Defendant entered into a comprehensive settlement agreement resolving all the issues in their underlying divorce action. (NY St Cts Filing [NYSCEF] Doc No. 28). Plaintiff and Defendant were divorced by Judgment of this Court dated June 22, 2023 and the Stipulation of Settlement was incorporated but not merged into the Judgment of Divorce. (NY St Cts Filing [NYSCEF] Doc No. 27).
During the marriage and continuing through today, Plaintiff has been employed by the New York State Unified Court System as a Court Officer. (NY St Cts Filing [NYSCEF] Doc No. 25). Plaintiff maintains in his affidavit that, "I have not sustained any career ending disabilities and I continue to work at full capacity. I have not applied for retirement, nor do I intend to do so while this motion is pending." (see id at page 2). Plaintiff further contends that "I do not currently have any injury or disability that would entitle me to any disability benefits, the DRO that is signed by the Court should provide for distribution of only those benefits to which Defendant is entitled, to wit: the marital share of service or non-disability portion of my pension." (see id at page 3).
The stipulation addresses the Plaintiff's New York State and Local Retirement System (hereinafter referred to as NYSLERS) pension under Article 12 Retirement Benefits Subsection 5 as follows:
The Husband is a participant in the NYS LERS Pension ("Pension Plan"). For the purposes of the division of marital property, the Wife (hereinafter "Alternate Payee") shall receive an irrevocable interest in the Participant's retirement benefits under the Pension Fund as follows:
a. The Alternate Payee shall receive as a distribution, a portion of the Participants Pension Plan that accrued during the marital period ("Marital Interest"). The Marital Interest shall be a fraction, defined as follows: The numerator shall be the total number of months of credited service between the Participant's date of initial credited service in the Pension Fund, or the date of the parties' marriage, that being July 6th, 1996, whichever is later, up to the date of the division of marital assets, that being November 30th, 2021, and the denominator shall be the total number of months of credited service in the Pension Fund which the Participant had at the time of retirement, termination, or death. The Alternate Payee is awarded Fifty (50%) Percent of the Marital Interest, multiplied by the Participants monthly retirement allowance. The retirement allowance shall be deemed to include any Cost-of-Living Adjustment (COLA), which is paid by the Pension Fund to the Participant.
b. Pre-retirement death benefit: The Participant is directed to designate the Alternate Payee as a beneficiary of the Pension Fund, so that in the event the Participant dies prior to retirement, the Alternate Payee shall receive 50% of any available preretirement death benefit calculated pursuant to the Marital Interest formula.
c. The Participant is directed to elect at the time of retirement, assuming the Alternate Payee is then living, to receive benefits pursuant to the terms of the Option 4 - Annuity (or a similar option) for the purpose of providing the Alternate Payee, the Participants death, with a monthly retirement benefit payable for life based upon the distribution calculated pursuant to the formula hereinabove set forth. The cost of the Participants retirement option election shall be: shared proportionately between the Participant and Alternate Payee.
d. Commencement of Benefits: The Pension Fund is directed to commence payments to the Alternate Payee upon commencement of the benefits to the Participant. (NY St Cts Filing [NYSCEF] Doc No. 28 at pages 20-21).
Defendant contends that the parties' settlement agreement contains no distinction as to whether Plaintiff retires on an ordinary service retirement or disability pension. Defendant alleges that prior to the execution of their stipulation of settlement, Plaintiff was aware of the possibility that he has suffered an injury which may ultimately lead to him retiring on a disability pension in the future. (NY St Cts Filing [NYSCEF] Doc No. 37). Plaintiff provides in her affidavit that
"Plaintiff was employed as a NYS Court Officer when the 9/11 terrorist attacks occurred on September 11th, 2001. At that time, Plaintiff was stationed in the courthouse located in lower Manhattan, which is located in the New York City Exposure Zone. Plaintiff either registered or filed a claim with the Victims Compensation Fund (hereinafter referred to as "VCF") on or about October 28th, 2019." (see id at page 3).
A copy of correspondence to the Plaintiff from the VCF dated October 28, 2019, provides:
This letter confirms that the September 11th Victim Compensation Fund ("VCF") has received the Registration information you provided on behalf of JC. Your claim number is REDACTED.
The current status of your claim is "Registration-Submitted." This means that you have registered with the VCF and have preserved your right to file a claim in the future. Registration is not a claim and the VCF cannot take any action to evaluate your eligibility to receive compensation until you submit a complete Claim Form, including the required supporting documents. (NY St Cts Filing [NYSCEF] Doc No. 40 at page 2).
Accompanying this correspondence from VCF is correspondence to the Plaintiff from Matthew J. McCauley, Esq., a partner at the firm of Turken, Heath & McCauley, LLP, dated October 30, 2019. This correspondence provides:
Thank you for contacting me with respect to your exposure to airborne toxins and other hazards from the September 11, 2001 terrorist attacks. As you requested, we have registered you with the September 11th Victim Compensation Fund. Your VCF Case Number is REDACTED and your registration status is "Registration-Submitted." You should also receive a letter from the VCF confirming your registration. Please save it in a safe location.
We are happy to hear that you are not exhibiting signs of any of the illnesses that many other 9/11 first responders suffer from. While we would be happy to assist you in filing a claim under the James Zadroga 9/11 Health and Compensation Act of 2010 should you be certified for qualifying injuries, our hope is that it never becomes necessary for you to do so. Upon completion of your next examination at the WTC- Health Program, please contact us if you expect to be certified for any qualifying conditions or if you develop any conditions in the future. Until that time we will take no further action, your file will be marked closed and we wish you a happy and healthy future. (see id at page 3).
A copy of correspondence to the Plaintiff from the VCF dated August 4, 2023, provides:
Our records indicate that you are listed as the attorney for claim number REDACTED filed for claimant JC.
This letter is a courtesy notification to let you know that based on recent communications with the claimant, the Special Master believes the claimant has changed representation on the claim or has submitted a different claim for the VCF to process. The VCF's records show the claimant is now represented by BARASCH MCGARRY SALZMAN & PENSON.
If you have not spoken with your client about this change, we encourage you to contact your client directly to confirm your status as their legal representative. (NY St Cts Filing [NYSCEF] Doc No. 41 at page 3).
On May 16, 2024, in response to Defendant's Subpoena Duces Tecum, the above aforementioned law firm of Barasch & McGarry provide the following email response:
We represent JC in connection with his claim to the 9/11Victim Compensation Fund (VCF). My office is in receipt of the above-referenced Subpoena Duces Tecum demanding copies of all documents relating to our client's VCF claim REDACTED). (NY St Cts Filing [NYSCEF] Doc No. 50).
In short, we have only registered Mr. JC's claim with the VCF. No actual claim has been filed and no current actions are pending at this time. He is not certified for any compensable illness at this time. (NY St Cts Filing [NYSCEF] Doc No. 50).
Plaintiff maintains in his affidavit that "I did not sustain any injury on September 11, 2001. In the twenty-three (23) years since September 11, 2001, I have not exhibited any symptom of any 9-11 related illness. Defendant is aware that at no time have I ever sought medical treatment for any 9-11 related illness or injury." (NY St Cts Filing [NYSCEF] Doc No. 48 at page 3). Plaintiff further maintains that "I have not filed a Victim Compensation Fund claim. I merely registered to establish my presence in the affected area during the relevant time period." (see id).
Plaintiff contends that "I did not have a basis to apply for a disability pension at the time that I entered into the Stipulation of Settlement, nor do I currently have a basis to apply for a disability pension. I continue to be employed as a Court Officer for the New York Courts Unified Court System. I am on full active duty without limitation." (see id).
III. Discussion
The language of the parties' stipulation of settlement as pertaining to the distribution of the Plaintiff's NYSLERS pension is as follows:
The Alternate Payee shall receive as a distribution, a portion of the Participants Pension Plan that accrued during the marital period ("Marital Interest"). The Marital Interest shall be a fraction, defined as follows: The numerator shall be the total number of months of credited service between the Participant's date of initial credited service in the Pension Fund, or the date of the parties' marriage, that being July 65, 1996, whichever is later, up to the date of the division of marital assets, that being November 30th, 2021, and the denominator shall be the total number of months of credited service in the Pension Fund which the Participant had at the time of retirement, termination, or death. The Alternate Payee is awarded Fifty (50%) Percent of the Marital Interest, multiplied by the Participants monthly retirement allowance. The retirement allowance shall be deemed to include any Cost-of-Living Adjustment (COLA), which is paid by the Pension Fund to the Participant. (NY St Cts Filing [NYSCEF] Doc No. 28 at page 20).
Correspondence from NYSLERS, dated February 6, 2024, provides that "If the Participant retires under a disability: DRO is silent. Alternate Payee's distribution will be calculated using Participant's disability retirement allowance." (NY St Cts Filing [NYSCEF] Doc No. 42).
On or about April 2, 2024, Defendant submitted a proposed DRO with a Notice of Settlement date of April 19, 2024. (see id). The DRO submitted by Defendant is silent as to whether any disability portion of the Plaintiff's pension payments should be distributed to Defendant and this silence would result in the NYSLERS defaulting to the assumption that full benefits, including the disability portion, should be distributed.
"A domestic relations order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment" (see Fanning v Fanning, 221 A.D.3d 655 [2d Dept 2023] quoting McPhillips v McPhillips, 165 A.D.3d 917 [2d Dept 2018]; citing McCoy v Feinman, 99 N.Y.2d 295 [2002]).
"A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation" (see Palau v Palau, 219 A.D.3d 919 [2d Dept 2023] quoting Murphy v Murphy, 120 A.D.3d 1319 [2d Dept 2014]; citing McPhillips v McPhillips, 165 A.D.3d 917 [2d Dept 2018]). "Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used" (see id quoting Ayers v Ayers, 92 A.D.3d 623 [2d Dept 2012]; citing Berlin v Berlin, 192 A.D.3d 856 [2d Dept 2021]).
The DRO submitted by Defendant is silent as to whether any disability portion of the Plaintiff's pension payments should be distributed to Defendant. Pursuant to the correspondence from the plan that was submitted with the proposed DRO, if the DRO is silent as to any disability portion of the pension, the plan will assume that the full benefits (including the disability portion) should be distributed. On this Accordingly, Plaintiff contends that the proposed DRO is inconsistent the with stipulation of settlement and the Judgment of Divorce and should not be signed and entered.
"A court cannot issue a QDRO more expansive or 'encompassing rights not provided in the underlying stipulation'" (see Berardi v Berardi, 54 A.D.3d 982 [2d Dept 2008] quoting McCoy v Feinman, 99 N.Y.2d 295 [2002]; citing Von Buren v Von Buren, 252 A.D.2d 950 [4th Dept 1998]; De Gaust v De Gaust, 237 A.D.2d 862 [3d Dept 1997]).
The parties' Judgment of Divorce and stipulation of settlement do not convey to Defendant any interest in any disability benefits that Plaintiff may at some further point become entitled to. Defendant's argument that the absence of an exclusion of any future disability benefits results in an inclusion of those benefits is contrary to established precedent. "Absent a provision in the stipulation specifically awarding the plaintiff accident disability benefits, the Supreme Court could not issue a more expansive QDRO" (see id citing McCoy v Feinman, 99 N.Y.2d 295 [2002]; Von Buren v Von Buren, 252 A.D.2d 950 [4th Dept 1998]; De Gaust v De Gaust, 237 A.D.2d 862 [3d Dept 1997]).
Defendant cites Pulaski v. Pulaski, 22 A.D.3d 820 [2d Dept 2005], which is distinct from this matter because in Pulaski, "[b]efore entering into the stipulation the defendant applied, in September 1996, for a disability pension with his employer, the New York City Police Department, based on a line-of-duty injury sustained in 1993. After the divorce, he was retired on disability and his pension payments commenced in October 1998."
Plaintiff in this matter has not applied for disability. Plaintiff maintains that he did not sustain any injury on September 11, 2001; in the years since September 11, 2001, he has not exhibited any symptom of any 9-11 related illness; he has never sought medical treatment for any 9-11 related illness or injury and he has not filed a Victim Compensation Fund claim, but merely registered to establish my presence in the affected area during the relevant period. (NY St Cts Filing [NYSCEF] Doc No. 48 at page 3). Plaintiff further maintains he had no basis to apply for a disability pension at the time he executed the stipulation of settlement, nor does he currently have a basis to apply for a disability pension. (see id). Plaintiff continues to be employed as a Court Officer for the New York Courts Unified Court System on full active duty without limitation." (see id). On May 16, 2024, in response to Defendant's Subpoena Duces Tecum, Plaintiff's counsel regarding the VCF provided they have only registered Plaintiff's claim, no actual claim has been filed, and no current actions are pending at this time. (NY St Cts Filing [NYSCEF] Doc No. 50). Plaintiff is not certified for any compensable illness at this time. (see id).
The September 11th Victim Compensation Fund ("VCF") provides compensation to individuals (or a personal representative of a deceased individual) who were present at one of the three crash sites during the following timeframes, and who have since been diagnosed with a 9/11-related physical illness:
• The World Trade Center or the surrounding New York City ("NYC") Exposure Zone between September 11, 2001 and May 30, 2002;
• The Pentagon site between September 11, 2001 and November 19, 2001; or
• The Shanksville, Pennsylvania site between September 11, 2001 and October 3, 2001.
The VCF is not limited to first responders and you do not have to be sick to register. (September 11th Victim Compensation Fund, https://www.vcf.gov/about/ [last accessed August 30, 2024]).
According to the VCF's July 2024 Monthly Statistics Report, as of July 31, 2024, the VCF had 174,732 cumulative unique registrations. (September 11th Victim Compensation Fund, https://www.vcf.gov/sites/vcf/files/media/document/2024-08/VCFMonthlyReportJuly2024.pdf/ [last accessed August 30, 2024]). Out of the 174,732 persons who registered with the fund, approximately 53% or 92,012 submitted claims. (see id). Only 36% or 62,598 of the those who registered with the VCF received approved eligibility determinations. (see id).
The VCF makes it very clear in its information about the fund that" you do not have to be sick to register" (September 11th Victim Compensation Fund, https://www.vcf.gov/about/ [last accessed August 30, 2024]). The VCF's correspondence to the Plaintiff, dated October 28, 2019, provides: "[y]ou have registered with the VCF and have preserved your right to file a claim in the future. Registration is not a claim[.]" (NY St Cts Filing [NYSCEF] Doc No. 40 at page 2).
The correspondence to Plaintiff from Matthew J. McCauley, Esq., dated October 30, 2019, includes, "We are happy to hear that you are not exhibiting signs of any of the illnesses that many other 9/11 first responders suffer from. While we would be happy to assist you in filing a claim under the James Zadroga 9/11 Health and Compensation Act of 2010 should you be certified for qualifying injuries, our hope is that it never becomes necessary for you to do so." (see id at page 3).
Pulaski is further distinct in that in Pulaski "based upon the express language of the parties' stipulation, by which they opted out of the operation of case law construing Domestic Relations Law § 236 [B] [3], the parties provided for an equal division of the defendant's pension without reference to whether the pension was disability or normal retirement. Moreover, they agreed to waive any claim, inter alia, as to separate property" (see id). In this matter, the wording of the parties' Stipulation does not, imply inclusion of any separate property disability benefits Plaintiff may become entitled to in the future.
Additionally, it is uncontroverted that Plaintiff has not applied for a disability pension and that he remains on active duty as opposed to the Defendant in Pulaski who applied for a disability pension before he entered the stipulation.
Rosenberger v. Rosenberger, 63 A.D.3d 898 [2d Dept 2009] is equally distinct from this matter. In Rosenberger
the plaintiff, a former New York City firefighter, suffered a line-of-duty injury and applied for an accident disability pension before entering into the subject stipulation. 'Thus, he clearly was aware of or chargeable with knowledge of the prospect of his eventual disability retirement when he entered into the stipulation' (quoting Pulaski v Pulaski, 22 A.D.3d 820 [2d Dept 2005]). Although the plaintiff acknowledged in the stipulation of settlement that he had been advised of and understood his rights pursuant to the equitable distribution provisions of the Domestic Relations Law, the stipulation of settlement nevertheless provided for a division of his pension without reference to whether the pension was based on accident disability or referable to ordinary service retirement. Moreover, the QDRO authorizing the defendant to receive a share of the plaintiff's entire pension in accordance with the Majuaskas formula (see Majauskas v Majauskas, 61 N.Y.2d 481 [1984]) was entered upon the plaintiff's consent after his application for an accident disability pension had been approved. Under these circumstances, the Supreme Court properly denied the plaintiff's motion, in effect, to amend the QDRO.
Plaintiff in Rosenberger applied for a disability pension before entering into the stipulation of settlement, which distinguishes Rosenberger from this case and renders it inapplicable. Here, Plaintiff has not applied for any disability pension, and he remains on active full duty as a Court officer. Plaintiff's mere registration along with the other 174,732 persons as of July 31, 2024, who have registered to preserve their rights to a claim from the VCF does not equate to the Plaintiff being "aware of or chargeable with knowledge of the prospect of an eventual disability retirement" when he entered into the parties' stipulation of settlement on May 17, 2023.
This matter as in Nugent-Schubert v Schubert, 88 A.D.3d 967 [2d Dept 2011], the case is distinguishable from this Court's decisions in Rosenberger v. Rosenberger, 63 A.D.3d 898 [2d Dept 2009] and Pulaski v. Pulaski, 22 A.D.3d 820 [2d Dept 2005].
"In those cases, the husbands had applied for disability benefits, based upon line-of-duty injuries, prior to execution of the stipulation such that they were 'chargeable with knowledge of the prospect of [an] eventual disability retirement when [they] entered into the stipulation'" (see Nugent-Schubert v Schubert, 88 A.D.3d 967 [2d Dept 2011] quoting Pulaski v. Pulaski, 22 A.D.3d 820 [2d Dept 2005]; Rosenberger v. Rosenberger, 63 A.D.3d 898 [2d Dept 2009]).
Thus, in Pulaski and Rosenberger, where the husbands were aware, before entering into a stipulation, of the specific potential for receipt of pension benefits that they would be entitled to treat as separate property, the broad language in the stipulation referring to distribution of a pension generally, with no provision for separate-property treatment of the pension, was reasonably interpreted as intending to distribute the entire disability pension. Here, as in Berardi, where it was unknown and unanticipated that the defendant would qualify for a disability pension, there is no reason to conclude that a general provision providing for equal distribution of "any pension" was intended to opt out of the controlling law in order to distribute portions of any such pension that would not ordinarily be subject to equitable distribution. (see Nugent-Schubert v Schubert, 88 A.D.3d 967 [2d Dept 2011] citing Berardi v Berardi, 54 A.D.3d 982 [2d Dept 2008]).
Indeed, the fact that the plaintiff submitted a QDRO which would have limited the distribution of any future disability pension to that portion representing deferred compensation further evinces the parties' understanding that separate-property portions of "any pension" received by the husband would not be subject to distribution. Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was to amend the QDRO so as to exclude from distribution to the plaintiff that portion of his disability pension that constitutes compensation for personal injuries, and we remit the matter for the entry of an appropriate amended QDRO. (see id).
"[I]nasmuch as a portion of [a spouse's] ordinary disability pension represents deferred compensation related to length of employment occurring during the marriage, it constitutes marital property subject to equitable distribution" (see Berardi v Berardi, 54 A.D.3d 982 [2d Dept 2008] quoting Dolan v Dolan, 78 N.Y.2d 463 [1991]; Olivo v Olivo, 82 N.Y.2d 202 [1993]; Majauskas v Majauskas, 61 N.Y.2d 481 [1984). However, "[t]o the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution" (see id quoting Mylett v Mylett, 163 A.D.2d 463 [2d Dept 1990]; Link v Link, 304 A.D.2d 800 [2d Dept 2003]; Beshara v Beshara, 281 A.D.2d 577 [2d Dept 2001]; Domestic Relations Law § 236 [B] [5] [b]). Such is the case with an accident disability pension under the Administrative Code of the City of New York § 13-258 which is based on physical or mental incapacity proximately resulting from city service, not length of service. (see id citing Dolan v. Dolan, 78 N.Y.2d 463 [1991]; McNelis v McNelis, 6 A.D.3d 673 [2d Dept 2004]; West v West, 115 A.D.2d 601 [2d Dept 1985]).
Accordingly, the Plaintiff's request for the Court to enter a Domestic Relations Order for distribution of Plaintiff's pension that excludes Defendant from receiving any disability benefits that Plaintiff may become entitled to is GRANTED, with prejudice and the Court will execute the Domestic Relation Order proposed by the Plaintiff (NY St Cts Filing [NYSCEF] Doc No. 29) contemporaneously with this Decision and Order.
III. Counsel Fees
Plaintiff seeks an award of counsel fees in no less than the amount $7,500.00 [SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS]. In Plaintiff's Attorney's Affirmation in Support of the Order to Show Cause filed via NYSCEF on April 26, 2024, Plaintiff counsel provided that,
The billing statement for this motion has not yet been generated but will be generated on or about May 1, 2024. I ask the permission of this Court to submit billing statements at the conclusion of this proceeding which will accurately reflect the counsel fees, costs and disbursements incurred by Plaintiff. (NY St Cts Filing [NYSCEF] Doc No. 26).
"[F]or a party to be entitled to an award of counsel fees, there must be sufficient documentation to establish the value of the services performed" (see Reynolds v Reynolds, 300 A.D.2d 645 [2d Dept 2002]). "[I]n seeking an award of attorneys' fees, an attorney must submit documentation showing the legal services performed, such as time records or a breakdown of services, and the time spent on each service" (see Spataro v. Spataro, 211 A.D.3d 1069 [2d Dept 2022] quoting AK v TK, 150 A.D.3d 1091 [2d Dept 2017]).
To date no billing statements have been provided to the Court by Plaintiff. Accordingly, Plaintiff's request for counsel fees is DENIED without prejudice to renew pending the submission of proper documentation.
Defendant's request for counsel fees is DENIED with prejudice.
Decretal Paragraphs
It is hereby ORDERED, that Plaintiff's request for the Court to enter a Domestic Relations Order for distribution of Plaintiff's pension that excludes Defendant from receiving any disability benefits that Plaintiff may become entitled to is GRANTED, with prejudice and the Court will execute the Domestic Relation Order proposed by the Plaintiff (NY St Cts Filing [NYSCEF] Doc No. 29) contemporaneously with this Decision and Order, and it is further;
ORDERED, that Plaintiff's request for counsel fees is DENIED without prejudice to renew pending the submission of appropriate documentation, and it is further;
ORDERED, that Defendant's request for counsel fees is DENIED with prejudice, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.