Opinion
November 12, 1999
Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Counsel Fees.
PRESENT: PINE, J. P., WISNER, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Order unanimously reversed on the law without costs and application denied with leave to renew in accordance with the following Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiff's application and awarding plaintiff counsel fees in the amount of $8,500 (see, Lee v. Chan, 245 A.D.2d 270). The parties' separation agreement, incorporated into the amended judgment of divorce, authorizes an application for counsel fees only in connection with enforcement proceedings or appeals. Plaintiff's application improperly sought counsel fees from the inception of the action; relied on alleged intransigent conduct by defendant during the pendency of the action; failed to set forth competent evidence of plaintiff's financial circumstances; and failed to delineate separately the time spent, services rendered and charges made for legal services related to the appeal and to the enforcement proceeding. We therefore reverse the order and deny the application with leave to renew upon appropriate submissions (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881; Lee v. Chan, supra; Faust v. Faust, 199 A.D.2d 1057; Kremler v. Kremler, 199 A.D.2d 901, 902-903).