Opinion
2012-02-21
Henry RUBIO, appellant, v. Rosemary RUBIO, respondent.
Stephen David Fink, Forest Hills, N.Y., for appellant.
In a matrimonial action in which the parties were divorced by judgment dated February 13, 2003, the plaintiff appeals from an order of the Supreme Court, Queens County (Flaherty, J.), dated December 16, 2010, which, without a hearing, granted that branch of the defendant's motion which was for an award of an attorney's fee.
ORDERED that the order is affirmed, without costs or disbursements.
Although, generally, an evidentiary hearing to determine the appropriate amount of an attorney's fee should be conducted before the court grants an award of an attorney's fee ( see Matter of Hobenson v. Tarnavsky, 76 A.D.3d 560, 561, 905 N.Y.S.2d 516; Kerrigan v. Kerrigan, 71 A.D.3d 737, 738, 896 N.Y.S.2d 443; Sheikh v. Basheer, 34 A.D.3d 670, 670, 824 N.Y.S.2d 570), the record demonstrates that the plaintiff waived his right to a hearing on this issue when he opposed that branch of the defendant's motion which was for an award of an attorney's fee ( see Messinger v. Messinger, 24 A.D.3d 631, 809 N.Y.S.2d 83; Bengard v. Bengard, 5 A.D.3d 340, 341, 772 N.Y.S.2d 526; cf. Janousek v. Janousek, 108 A.D.2d 782, 783, 485 N.Y.S.2d 305).
The plaintiff's contention regarding the belated submission of the defendant's net worth statement is without merit, and his remaining contention is not properly before this Court.