Opinion
March 2, 1981
In an action, inter alia, for a money judgment for arrears due under the escalation clause of the parties' separation agreement, incorporated but not merged into a decree of divorce, defendant appeals from a judgment of the Supreme Court, Suffolk County, entered June 18, 1980, which, after a hearing, fixed arrears and awarded plaintiff a counsel fee. Judgment modified by deleting the second decretal paragraph, which awarded plaintiff a counsel fee. As so modified, judgment affirmed, without costs or disbursements, and case remanded to Trial Term for further proceedings consistent herewith. Although the award of a counsel fee is permissible in the instant action (see Fabrikant v Fabrikant, 19 N.Y.2d 154), defendant is entitled to an evidentiary hearing, as requested, in which he may challenge the value and extent of counsel's claimed services (see Sadofsky v. Sadofsky, 78 A.D.2d 520). Hopkins, J.P., Damiani, Lazer and Thompson, JJ., concur.