Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Denman, P.J., Callahan, Green, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court erred in directing that, pursuant to CPLR 5242, there should be a weekly deduction from defendant's wages to satisfy the court's previous order that defendant pay plaintiff's attorney's fee (see, Sitarek v. Sitarek [appeal No. 1], 179 A.D.2d 1064 [decided herewith]). Notwithstanding language to the contrary in Domestic Relations Law § 236 (B) (9) (a), CPLR 5242 cannot be used to enforce an obligation to pay attorney's fees (see, Brian Maloney, M.D., P.C. v. Maloney, 140 Misc.2d 852, 856; American Airlines v. Block, 905 F.2d 12, 15, n 2; Scheinkman, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 14, 1992 Pocket Part, Domestic Relations Law C236B:47, at 75; Siegel, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, 1992 Pocket Part, CPLR 5241, at 129; see also, Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 244, at 749-750).
Supreme Court also erred in awarding plaintiff's attorney a fee of $2000 for the anticipated costs of this appeal. Such an award "cannot be upheld in the absence of an affidavit setting out the nature of the attorney's services and the time spent" (Kieffer v Kieffer, 163 A.D.2d 907, 908).
Accordingly, the order of Supreme Court is modified by vacating those provisions directing a wage deduction and ordering defendant to pay plaintiff's attorney the sum of $2000 for the anticipated costs of this appeal.