Opinion
xxxxx/xxxx
02-18-2020
TARA W., Plaintiff, v. YITZCHOK W., Defendant.
The following papers numbered 1 to 7 read herein :
Papers Numbered
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-3
Opposing Affidavits (Affirmations) 4
October 3, 2019 Order 5
Plaintiff's Supporting Documentation 6
Defendant's Attorney's Affirmation in Further Opposition 7
Upon the foregoing papers, in this action by plaintiff Tara W. (plaintiff) against defendant Yitzchok W. (defendant) for divorce and ancillary relief, plaintiff moves, postjudgment, by order to show cause, under motion sequence number 25, for an order: (1) finding, adjudging, and declaring defendant to be in contempt of court, pursuant to Judiciary Law § 750 and § 753, for his willful and deliberate failure and refusal to comply with the judgment of divorce in this action filed on April 13, 2017 that ordered defendant to comply with the parties' settlement agreement, dated May 11, 2016, which required that defendant: (a) simultaneously with the execution of the settlement agreement, execute, acknowledge, and deliver to her a bargain and sale deed with covenants, together with all ancillary recording documents, conveying all of his right, title and interest in the marital residence of the parties located at XX Xxxxxx Xxxxxx, Staten Island, New York (the marital residence); and (b) simultaneously with the execution of the settlement agreement, make a payment to her of $3,000 for his share of liability towards any outstanding water bills for the marital residence; (2) directing that the title and interests of defendant to the marital residence be transferred by a sheriff or receiver to be appointed by the court; (3) directing and compelling defendant to execute and deliver any and all documents and papers to take any action that may be reasonably requested by the sheriff or receiver appointed by the court to effectuate the transfer of his title and interest in the marital residence, including, but not limited to, taking any action and/or executing and delivering any and all documents as may be required, and in the event that defendant fails, refuses, and neglects to take such actions or to execute such documents or papers, authorizing the sheriff or receiver to execute such documents or papers or to perform such actions on behalf of defendant; (4) directing and compelling defendant, pursuant to article 29 of the settlement agreement, to produce a current life insurance policy in the amount of $1,000,000 that is in full force and effect, with all premiums paid up to date, securing his support obligations under the settlement agreement; (5) directing and compelling defendant to pay her the sum of $12,418.50, representing defendant's one-half portion of the real estate taxes and homeowner's insurance on the marital residence from the time that defendant failed to transfer the marital residence to her until the present time; and (6) directing and compelling defendant to pay her the sum of $2,500 for legal consulting and document preparation fees that she paid to Brad Berfas, Esq. (Mr. Berfas), for the preparation of the instant motion that was brought due to defendant's contempt and failure to comply with the court's judgment of divorce, which incorporated, but did not merge the settlement agreement.
Facts and Procedural Background
Plaintiff and defendant were married in November 1996 in Queens, New York, in a religious ceremony. There were five children born of the marriage. On August 25, 2011, plaintiff filed this action for divorce, pursuant to Domestic Relations Law § 170 (7), on the ground of irretrievable breakdown of the marriage for a period of six months or more. The parties entered into a written settlement agreement, dated May 11, 2016, to settle their marital and financial rights and obligations in all respects.
The settlement agreement provided for the payment of child support by defendant and the division of the parties' marital property. As relevant here, article 29 of the settlement agreement, entitled "Life Insurance," provided, in pertinent part, as follows:
"In addition to ...child support, [defendant] shall maintain his current life insurance policy in the amount of $1,000,000.00 until the end of its term, and shall designate the proceeds thereof to secure [defendant's] support obligations under the terms of this agreement. [Defendant] shall provide proof to [plaintiff] that such insurance is in full force and effect, with all premiums paid up to date and no liens thereon, at least annually, and [defendant] shall not borrow against or in any way hypothecate said policy or policies ..."
At the time of the execution of the settlement agreement, plaintiff resided in the marital residence and defendant resided in a separate apartment. In article 35 of the settlement agreement, entitled "Real Property," the parties acknowledged that they were the owners of the marital residence as tenants by the entirety, that the fair market value of the marital residence was approximately $650,000, that the marital residence was encumbered by a mortgage in the amount of approximately $80,000, and that the parties would be entitled to the remaining equity of $570,000 in the marital residence, such that each party's share of the marital residence would be approximately $285,000. The parties agreed, in article 35 of the settlement agreement, that defendant "relinquishe[d] any and all equitable and legal interests in the marital residence and any and all such interests shall be transferred to [plaintiff] as a distributive award in consideration and payment of all pendente lite child support and (non-taxable) spousal support obligations owed by [defendant] to [plaintiff]."
Article 35 of the settlement agreement further provided, in pertinent part, as follows:
"In consideration of all the terms of this agreement, simultaneously upon the execution of this Stipulation, [defendant] has executed, acknowledged and delivered to the [plaintiff], a bargain and sale deed with covenant, together with all ancillary recording documents, conveying all of his right, title and interest in and to the marital residence to [plaintiff], thereby divesting himself of all interest in the said real property. Said documents shall be held in escrow by Joel Yacoob, Esq. [who was plaintiff's attorney in the divorce action] and shall not be released to [plaintiff] until [defendant] is removed from the mortgage.
"[Plaintiff] stipulates and agrees that she will take any and all steps to remove [defendant's] liability from the [m]ortgage within six months of the date this agreement is executed. The parties agree to cooperate with each other and with any lending institution so as to allow [plaintiff] to remove [defendant's] obligations under the [m]ortgage. [Plaintiff] shall be responsible for any transfer fees.
"[Plaintiff] shall be solely responsible for the payment and satisfaction of the [m]ortgage, including any fees, expenses, and attorneys' fees associated with the foreclosure on the [m]arital [r]esidence, and for any and all expenses and liabilities related to the [m]arital [r]esidence, including but not limited to taxes, insurance, utility, water and fuel charges, cable, telephone, alarm, gardening and the like, and hereby agrees to indemnify and hold [defendant] harmless therefrom."
Article 36 of the settlement agreement, entitled "Debts and Obligations," provided that "upon execution of this agreement, [defendant] shall make a one-time payment of $3,000 to [plaintiff] as and for his share of liability towards any outstanding water bills."
Article 15 of the settlement agreement, entitled "Penalties on Default," provided as follows:
"In the event that either party defaults with respect to any obligation set forth in this agreement, the injured party shall send written notice, by either: (1) certified mail, return receipt requested; or (2) overnight delivery service, to the defaulting party, which notice shall specify the nature of the default and, if relevant, any amount due which remains unpaid. If the payment is not made, or the default otherwise cured, within 30 days of receipt of said notice, and the injured party incurs reasonable attorney's fees and related expenses or costs in commencing and maintaining an action or proceeding to enforce this agreement, the defaulting party shall pay all such reasonable fees and costs.
The court signed the judgment of divorce on April 11, 2017, which was entered on April 13, 2017. The terms of the settlement agreement were incorporated by reference in the judgment of divorce, but survived and did not merge in the judgment of divorce. The judgment of divorce directed the parties to comply with every enforceable term and provision of the settlement agreement.
On September 21, 2017, one year and four months after the settlement agreement was executed, a satisfaction of mortgage was recorded in the Richmond County Clerk's Office regarding the mortgage that had encumbered the marital residence. On October 7, 2017, plaintiff sent an email to Natan Shmueli, Esq. (Mr. Shmueli), defendant's attorney in the divorce action, with a copy of notes from the mortgage company to show that the mortgage was satisfied by her. Plaintiff requested that Mr. Shmueli schedule the transfer of the marital residence to her. Apparently, defendant did not execute the deed simultaneously upon the execution of the settlement agreement, and Joel Yacoob, Esq. was not holding the deed and ancillary recording documents in escrow, as was stated in article 35 of the Settlement Agreement.
By an email dated October 16, 2017, Mr. Shmueli stated that he no longer represented defendant. By an email dated October 18, 2017, plaintiff advised defendant that his name was off the mortgage and attached the documents showing that the mortgage was paid in full. Plaintiff asked defendant when he was available to meet to sign over the deed to the marital residence to her. Defendant, in an October 18, 2017 email, responded that he was available any time as long as he was around, and to let him know when and where.
Subsequently, plaintiff's real estate attorney, Simon Klein, Esq., continuously attempted to set up an appointment with defendant to sign the deed and ancillary recording documents. Approximately one year passed with no success in getting defendant to set up an appointment and sign the deed and ancillary recording documents. At some point, plaintiff received an email that defendant was now being represented by his brother, Rafael W., Esq. At that time, Mr. Klein contacted Rafael W. to schedule the signing of the deed and ancillary recording documents, but defendant never made an appointment to sign them.
By a February 6, 2019 email by plaintiff to Rafael W., defendant, and Mr. Klein, plaintiff attached the satisfaction of mortgage showing that she paid off the mortgage, and noted that this was sent to defendant over a year ago. Plaintiff, in this email, requested defendant to sign the papers to transfer his share of the marital residence to her so that she would have full title to the marital residence. Rafael W., in an email sent on the same day, stated that plaintiff had to first comply with turning over certain personal property to defendant before defendant would comply with signing the papers.
Plaintiff asserts that the items of personal property to which Rafael W. referred in his email consist of photographs of the children and money in a safe at the marital residence. Plaintiff notes that such a turnover was not a precondition to defendant's execution of the deed and ancillary transfer documents for the marital residence. Plaintiff states that the hard drive on her home computer crashed, and the digital pictures of the children were lost. She further states that this was the first time that there was any mention of any money stored in a safe.
Plaintiff also asserts that defendant did not pay her the $3,000 for the water bill, as required by article 36 of the settlement agreement. In addition, plaintiff asserts that defendant failed to produce a current life insurance policy in the amount of $1,000,000, as required by article 29 of the settlement agreement.
Plaintiff argues that defendant should be required to pay her the sum of $12,418.50 as his share of the real estate taxes on the marital residence and the homeowner's insurance that she has had to pay during the time period that defendant failed to transfer his share of the marital residence to her. She has annexed a copy of a real estate tax bill in the amount of $5,168.41 for the taxes due through November 17, 2017 and a bill for homeowner's insurance in the amount of $2,063 due on December 2, 2017.
Plaintiff also states that she retained Mr. Berfas to assist her with the preparation of her instant motion and to provide her with legal advice and help regarding this motion. Plaintiff has annexed a copy of her retainer agreement with Mr. Berfas, but states that she is filing this motion pro se. Plaintiff further states that she paid Mr. Berfas $2,000 initially and agreed to pay him an additional $500 after she filed this motion for his legal assistance. The retainer agreement, dated December 28, 2018, states that plaintiff retained Mr. Berfas' law firm and its associates "as consultants for the mere purpose of preparing an [o]rder to [s]how [c]ause" in her postdivorce matters relating to issues regarding defendant and his contempt in not adhering to the settlement agreement. The retainer agreement further states that plaintiff authorizes Mr. Berfas and his firm to take any steps deemed necessary or appropriate to protect her interests in the matter in order to prepare the documentation, but that ultimately plaintiff will file the order to show cause herself, represent her interests in open court, and make the necessary appearances. It also states that Mr. Berfas' sole purpose is to prepare the order to show cause and enable plaintiff to represent herself pro se, and that plaintiff has agreed to pay his firm a flat rate of $2,500, which encompasses her total bill. Plaintiff filed her instant order to show cause on March 20, 2019.
Plaintiff, in her moving papers, argues that defendant should be held in civil contempt based on his failure to comply with both article 35 and article 36 of the settlement agreement. Mr. Berfas, in his affirmation with respect to plaintiff's counsel fee request, states that plaintiff retained his law firm on December 28, 2019 solely to prepare the order to show cause to submit to the court and not to represent her in a legal capacity since she intended to do so pro se. He asserts that his fee request of $2,500 is fair and reasonable, taking into consideration his firm's extensive experience, the fee customarily charged in this locality for similar services, as well as the time and labor required, the hours spent, the novelty and difficulty of the questions involved, and the requisite skill to perform the consulting service. He states that he has been a partner at Berfas & Associates, P.C. and has specialized in matrimonial law for almost 10 years, and that he is also a certified mediator and partner at Win Win Divorce Solutions, LLC.
Plaintiff contends that defendant's willful failure to transfer his rights, title, and ownership of the marital residence, as required by the terms of article 35 of the settlement agreement and the judgment of divorce warrant the award of the $2,500 fees requested by her. Plaintiff asserts that she should not have to bear the burden of defendant's noncompliance and that she was caused to incur these unnecessary fees in her attempts to obtain defendant's cooperation in this matter. Plaintiff further points to the fact that article 15 of the settlement agreement specifically allows either party to recover reasonable fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce its terms.
Defendant submitted opposition papers to plaintiff's motion by his attorney, Jay C. Shoulson, Esq., who defendant retained on September 1, 2019. Mr. Shoulson states that when he read the order to show cause, he immediately called plaintiff and told her that defendant would sign the deed when they appeared on another matter in Family Court on September 4, 2019, and that he would bring the check for the $3,000 that defendant owed her. Plaintiff did not show up in Family Court, claiming that she was ill. Mr. Shoulson continued to ask plaintiff to allow defendant to sign the deed and for her to accept the $3,000, but plaintiff stated that she did not know if he was a real attorney or that he was actually representing defendant. Mr. Shoulson states that plaintiff would not allow defendant to purge himself of the alleged contempt even though he was willing to pay her the $3,000 and sign over the deed to the marital residence. Defendant also provided proof that he has the life insurance coverage required by article 29 of the settlement agreement.
Mr. Shoulson asked plaintiff to withdraw the order to show cause. Mr. Shoulson states that plaintiff has not fulfilled obligations regarding copying family pictures for defendant and turning over some personal documents left by defendant in the marital residence, but that since these issues are separate from the signing of the deed, defendant is willing to sign over the deed to the marital residence to her.
The court held oral argument on October 3, 2019, at which time plaintiff requested additional time to submit supporting documentation. The court, by an order dated October 3, 2019, ordered plaintiff to submit such supporting documentation to it and defendant's counsel by October 23, 2019, and directed defendant to respond by October 30, 2019. Defendant, on October 3, 2019, tendered the check to plaintiff for $3,000 and signed the deed transferring the marital residence to plaintiff.
Plaintiff submitted her supporting documentation, listing a breakdown of the bills that she is requesting that defendant pay and including the bills. These bills consist of $10,502 for payment to Tower Capital Management for a tax lien payoff for the lien sold in 2018; $2,500 to Mr. Berfas for preparation of the order to show cause; $2,063 for homeowner's insurance for 2017 from Mapfre Insurance Company of New York; $2,388 for homeowner's insurance for 2018 from AIG Private Client Group; and $20,576 (consisting of bills of $6,290 for 2017, $6,833 for 2018, and $7,453 for 2019) to the New York City Department of Finance for real estate taxes on the marital residence. These bills add up to $38,029. This $38,029 sum is the full amount of the bills, as opposed to one-half of this amount, but plaintiff states that this is the total amount that is due to her from defendant.
Defendant, in reply, states that plaintiff's submission of this supporting documentation was untimely because it was submitted to him by email on October 24, 2019, and it should have been submitted to him on October 23, 2019. He also states that he is not responsible for these bills since he did not derive any benefit from the delay in the deed transfer and plaintiff did not incur any extra expenses attributable to him. He points out that he did not live at the marital residence after he separated from plaintiff. He also asserts that some of these bills appear to duplicate charges, such as the tax bills and the tax lien. He further states that plaintiff did not show that she actually paid these bills by the submission of cancelled checks or receipts. He additionally states that these bills represent different expenses than that requested in plaintiff's order to show cause, which only sought a total of $12,418.50.
Defendant asserts that the delay in signing the deed was part of a long, ongoing argument between him and plaintiff about his request for plaintiff to turn over certain documents, photos, and other items of value at the same time that the deed was to be signed by him. He argues that his delay was not willful despite the fact that his attorney, Mr. Shoulson, admits that the signing of the deed was not dependent on turning over these documents, photos, and other items.
Discussion
In order for a movant to prevail on a motion to hold a party in civil contempt, he or she "must establish by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct" ( Latterman v. Latterman , 174 AD3d 518, 519 [2d Dept 2019] ; see also El-Dehdan v. El-Dehdan , 26 NY3d 19, 29 [2015] ; Shemtov v. Shemtov , 153 AD3d 1295, 1295 [2d Dept 2017] ; Mollah v. Mollah , 136 AD3d 992, 993 [2d Dept 2016] ; Casler v. Casler , 131 AD3d 664, 665 [2d Dept 2015] ; Lundgren v. Lundgren , 127 AD3d 938, 940 [2d Dept 2015] ). "Once the moving party makes this showing, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" ( Latterman , 174 AD3d at 519 ; see also El-Dehdan , 26 NY3d at 35 ; Mollah , 136 AD3d at 993 ). "A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense" ( Mollah , 136 AD3d at 993 ; see also Lundgren , 127 AD3d at 940-941 ).
The court notes that defendant was in civil contempt of article 35 of the settlement agreement, which was incorporated, but not merged into the Judgment of Divorce. There is no dispute that the defendant had knowledge of the terms of this article, and that defendant failed to timely comply with such terms (see Gomes v. Gomes , 106 AD3d 868, 868 [2d Dept 2013] ). Defendant does not allege that he was unable to comply with the terms of this article, and plaintiff was prejudiced by defendant's failure to comply with them. Since defendant raised no factual dispute as to the elements of contempt or the existence of a defense, a hearing was not required to make a finding of contempt against defendant (see Mollah , 136 AD3d at 993-994 ; Gomes , 106 AD3d at 869 ). However, defendant has purged himself of his contempt by signing the deed transferring the marital residence to plaintiff. Thus, this branch of plaintiff's motion has now been resolved, following the filing of plaintiff's motion.
In addition, plaintiff has purged himself of any contempt with respect to his failure to comply with article 36 of the settlement agreement by tendering the $3,000 check to plaintiff for his share of liability for the outstanding water bills for the marital residence on October 3, 2019. Therefore, plaintiff's motion has also been resolved in this respect by defendant's belated compliance, following the filing of plaintiff's motion.
Defendant has also produced a current life insurance policy in the amount of $1,000,000 that is in full force and effect, with all premiums paid up to date, as required by article 29 of the settlement agreement. Thus, this branch of plaintiff's motion has also been resolved by defendant's subsequent compliance, following the filing of plaintiff's motion.
As to that branch of plaintiff's motion, which demands that defendant pay her for one-half of the real estate taxes and homeowner's insurance on the marital residence from the time that defendant failed to transfer the marital residence to her until the time of such transfer, the court notes that the settlement agreement entered into by parties to this divorce action is a contract, "subject to principles of contract construction and interpretation, the terms of which are binding on the parties" ( Lainez v. Orellana , 174 AD3d 792, 794 [2d Dept 2019] ; see also Matter of Meccico v. Meccico , 76 NY2d 822, 823-824 [1990], rearg denied 76 NY2d 889 [1990] ; Rainbow v. Swisher , 72 NY2d 106, 109 [1988] ; Scheriff v. Scheriff , 152 AD3d 724, 725 [2d Dept 2017] ; De Luca v. De Luca , 300 AD2d 342, 342 [2d Dept 2002] ; Girardin v. Girardin , 281 AD2d 457, 457 [2d Dept 2001] ). "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" ( Ayers v. Ayers , 92 AD3d 623, 624 [2d Dept 2012] ; see also Slatt v. Slatt , 64 NY2d 966, 968 [1985], rearg denied 65 NY2d 785 [1985] ; De Luca , 300 AD2d at 342 ). "A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning" ( Ayers , 92 AD3d at 624 [2d Dept 2012] ; see also Cohen-Davidson v. Davidson , 291 AD2d 474, 475 [2d Dept 2002] ).
Here, article 35 of the settlement agreement clearly and unambiguously provided that plaintiff was "solely responsible for the payment [of] ...any and all expenses and liabilities related to the [m]arital [r]esidence, including but not limited to taxes [and] insurance." This article did not provide that defendant would remain liable for the taxes and insurance on the marital residence during the time period prior to the formal transfer of defendant's share of the marital residence to plaintiff. Pursuant to this article, plaintiff was responsible for such payments during the time period before the formal transfer of title of the marital residence to her.
As discussed above, defendant, at the time of the execution of the settlement agreement, no longer resided at the marital residence, and plaintiff had and remains in exclusive occupancy of the marital residence. Defendant derived no benefit from the marital residence and relinquished his claim to any ownership rights in it. The language of article 35 of the settlement agreement did not provide that defendant would be responsible in any way for any portion of these payments, but, rather, expressly provided that plaintiff would be solely responsible for these payments. There is no language in the settlement agreement which supports plaintiff's argument that defendant should be required to pay any portion of the real estate taxes or homeowner's insurance.
Since the terms of the settlement agreement are clear and unambiguous, the court must "give effect to the parties' intent based upon the plain meaning of the words used by the parties" ( Lainez v. Orellana , 174 AD3d 792, 794 [2d Dept 2019] ; see also Matter of Meccico , 76 NY2d at 824 ; McSherry v. McSherry , 163 AD3d 650, 651 [2d Dept 2018] ; Margolis v. Cohen , 153 AD3d 1390, 1392 [2d Dept 2017] ; Stein v. Stein , 130 AD3d 604, 605 [2d Dept 2015] ). Thus, pursuant to the terms of article 35 of the settlement agreement, defendant is not required to pay any portion of the real estate taxes or homeowner's insurance, and this branch of plaintiff's motion must be denied.
As to that branch of plaintiff's motion which seeks an order directing defendant to pay her $2,500 which she paid to Mr. Berfas in connection with preparing the instant motion, it is well established that "[w]here the parties have agreed to provisions in a settlement agreement that govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control" ( Roth v. Roth , 116 AD3d 833, 834 [2d Dept 2014] ; see also Fenster v. Fenster , 107 AD3d 933, 933 [2d Dept 2013] ; Sweeney v. Sweeney , 71 AD3d 989, 992 [2d Dept 2010] ; Rubio v. Rubio , 70 AD3d 805, 806 [2d Dept 2010] ; Matter of Berns v. Halberstam , 46 AD3d 808, 809 [2d Dept 2007] ; Arato v. Arato , 15 AD3d 511, 512 [2d Dept 2005] ). Here, article 15 of the settlement agreement expressly obligated a party who defaulted with respect to any obligation set forth therein to pay the other party his or her reasonable attorney's fees and related expenses and costs incurred in commencing and maintaining an action or proceeding to enforce such obligation.
It has been established that defendant defaulted with respect to: (1) his obligation under article 35 of the settlement agreement to execute the deed to the marital residence and all ancillary recording documents; (2) his obligation under article 36 of the settlement agreement to pay $3,000 to plaintiff as his share of the water bills; and (3) his obligation under article 29 of the settlement agreement to provide proof that he maintained a life insurance policy of $1,000,000 to secure his support obligations. It was only after plaintiff filed her motion that defendant agreed to cure these defaults by him. Thus, pursuant to article 15 of the settlement agreement, defendant, as the defaulting party, was contractually obligated to pay plaintiff such reasonable attorney's fees and related expenses or costs incurred by plaintiff in bringing this motion to enforce these articles of the settlement agreement (see Fackelman v. Fackelman , 71 AD3d 724, 726 [2d Dept 2010] ; Leiderman v. Leiderman , 50 AD3d 644, 644-645 [2d Dept 2008] ; Sieratzki v. Sieratzki , 8 AD3d 552, 554 [2d Dept 2004] ).
While plaintiff gave defendant written notice of his default by email, rather than by certified mail, return receipt requested, or by overnight delivery service to defendant, as set forth in article 15 of the settlement agreement, plaintiff's failure to strictly comply with this notice requirement is not fatal to plaintiff's request for attorney's fees and related expenses or costs because defendant does not dispute that he received actual notice of his defaults, and he was not, in any way, prejudiced as a result of this minimal deviation (see Suarez v. Ingalls , 282 AD2d 599, 600 [2d Dept 2001] ). Rather, defendant had actual notice of plaintiff's numerous requests for compliance with the terms of the settlement agreement, but he refused these requests, necessitating plaintiff's filing of this motion (see id. ; Dellicarri v. Hirschfeld , 210 AD2d 584, 585 [3d Dept 1994] ; Heischober v. Heischober , 53 Misc 3d 146[A], 2016 NY Slip Op 51600[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
Defendant argues that plaintiff is not entitled to attorney's fees because she did not provide a statement of net worth or an affidavit detailing her financial ability to pay such fees. Such argument is rejected since plaintiff's request for fees is based on article 15 of the settlement agreement, rather than Domestic Relations Law § 237 (see Garcia v. Garcia , 104 AD3d 806, 807 [2d Dept 2013] ; Matter of Milark v. Meigher , 56 AD3d 1018, 1021 [3d Dept 2008] ). Defendant also argues that plaintiff did not provide a cancelled check or a paid receipt for funds allegedly expended. Plaintiff, however, as noted above, provided the retainer agreement and Mr. Berfas' affirmation, showing the amount paid by her.
In addition, it is noted that plaintiff does not characterize her request as seeking attorney's fees, and states that she retained Mr. Berfas' law firm and its associates as "consultants" to prepare her instant order to show cause based on defendant's failure to adhere to the settlement agreement. Plaintiff refers to Mr. Berfas' fees as being for "legal consulting and document preparation" and as "consulting fees," and states that she is representing herself pro se. However, article 15 of the settlement agreement broadly encompasses "reasonable attorney's fees and related expenses or costs" in connection with enforcing the settlement agreement. The court finds that the $2,500 sought by plaintiff falls within the ambit of this article. Plaintiff incurred these fees due to defendant's refusal to comply with the settlement agreement and the need for court intervention before obtaining his cooperation. Defendant did not agree to sign the deed or pay the $3,000 until after this motion was brought.
Defendant asserts that "one might ask how it is reasonable to expend $2500.00 [to Mr. Berfas] to recoup $3,000." Plaintiff, however, was not merely seeking $3,000, but also for defendant to sign the deed transferring the marital residence, which defendant had refused to do for approximately one year. Defendant did not request a hearing on the issue of the reasonableness of the amount of the fees to be awarded, and did not object to the resolution of the issue based on written submissions. Thus, defendant waived the right to a hearing on this issue (see Rosner v. Rosner , 143 AD3d 884, 885 [2d Dept 2016] ). Consequently, under the circumstances of this case, where plaintiff was compelled to bring a motion to enforce the terms of the settlement agreement, the court finds that pursuant to article 15 of the settlement agreement, defendant must be required to pay plaintiff the reasonable amount of $2,500 as expenses incurred by her in enforcing defendant's obligations under the settlement agreement (see Mollah , 136 AD3d at 994 ; Martin v. Martin , 92 AD3d 646, 646 [2d Dept 2012] ).
Conclusion
Accordingly, it is hereby ORDERED that plaintiff's motion, insofar as it seeks to hold defendant in contempt for his failure to execute a deed conveying his share of the marital residence to her and his failure to pay her $3,000 for the water bills for the marital residence, is denied as moot based upon defendant's compliance and purging of his contempt; and it is further
ORDERED that plaintiff's motion, insofar as it seek an order directing that defendant's title and interest in the marital residence to the sheriff and directing defendant to execute and deliver any documents to the sheriff necessary to effectuate the transfer of his title and interest in the marital residence to plaintiff is denied as moot; and it is further
ORDERED that plaintiff's motion, to the extent that it seeks an order directing defendant to produce a current life insurance policy in the amount of $1,000,000 securing his support obligations, is rendered moot by his production of it; and it is further
ORDERED that Plaintiff's motion, insofar as it seeks an order directing defendant to pay her $12,418.50 for his one-half portion of the real estate taxes and homeowner's insurance on the marital residence from the time that he failed to transfer the marital residence to her until the time of such transfer, is denied; and it is further
ORDERED that plaintiff's motion is granted insofar as it seeks an order directing and compelling defendant to pay her the sum of $2,500 for legal consulting and document preparation fees that she paid to Mr. Berfas for the preparation of this motion. Defendant is hereby directed to pay the sum of $2,500 to plaintiff within 30 days of service upon defendant's attorney of a copy of this decision and order, with notice of entry thereon. If defendant fails to make this payment in compliance with this decision and order, plaintiff may enter a judgment with the clerk of the court, upon 10 days' written notice, by certified and regular mail, to defendant's attorney, without further application to this court, for the full amount due and owing, plus statutory costs and interest.
Any issue raised and not addressed in this decision and order is denied.
This constitutes the decision and order of the court.