Opinion
2013-12-4
Geraldine VITALE, appellant, v. John Anthony VITALE, respondent.
Galasso, Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (Peter J. Galasso of counsel), for appellant. Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), for respondent.
Galasso, Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (Peter J. Galasso of counsel), for appellant. Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
In a matrimonial action in which the parties were divorced by judgment dated April 2, 2008, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schellace, Ct.Atty.Ref.), dated March 16, 2012, which denied her motion for an award of an attorney's fee and an expert fee.
ORDERED that the order is affirmed, with costs.
In a matrimonial action, an award of an attorney's fee or an expert fee is a matter committed to the sound discretion of the trial court ( see Cusumano v. Cusumano, 96 A.D.3d 988, 947 N.Y.S.2d 175). An award of attorney's and expert fees pursuant to Domestic Relations Law § 237(a) will generally be warranted where there is a significant disparity in the financial circumstances of the parties ( see Chesner v. Chesner, 95 A.D.3d 1252, 945 N.Y.S.2d 409; Palmeri v. Palmeri, 87 A.D.3d 572, 929 N.Y.S.2d 153; Fredericks v. Fredericks, 85 A.D.3d 1107, 927 N.Y.S.2d 109). An award of an attorney's fee pursuant to Domestic Relations Law § 237(a) ensures that the nonmonied spouse will be able to litigate the action and do so on equal footing with the monied spouse ( see Finnan v. Finnan, 95 A.D.3d 821, 943 N.Y.S.2d 559; Many v. Many, 84 A.D.3d 1036, 925 N.Y.S.2d 87; Coven v. Coven, 82 A.D.3d 1144, 919 N.Y.S.2d 866). In determining whether to award fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, which may include the relative merit of the parties' positions ( see Chesner v. Chesner, 95 A.D.3d 1252, 945 N.Y.S.2d 409; Chaudry v. Chaudry, 95 A.D.3d 1058, 945 N.Y.S.2d 110; Perry v. Perry, 88 A.D.3d 861, 931 N.Y.S.2d 516). A court may consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation ( see Brantly v. Brantly, 89 A.D.3d 881, 933 N.Y.S.2d 300; Fredericks v. Fredericks, 85 A.D.3d 1107, 927 N.Y.S.2d 109; Aloi v. Simoni, 82 A.D.3d 683, 918 N.Y.S.2d 506).
Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was for an award of an attorney's fee and an expert fee pursuant to Domestic Relations Law § 237(a), since there was no significant disparity in the parties' financial circumstances ( see Kaminash v. Levi, 102 A.D.3d 837, 958 N.Y.S.2d 725). Furthermore, the plaintiff's conduct unnecessarily prolonged this litigation ( see Beth M. v. Joseph M., 12 Misc.3d 1188 [A], 2006 WL 2128157 [Sup.Ct. Nassau County 2006] ).
In addition, the failure of the plaintiff's former attorney to substantially comply with 22 NYCRR 1400.2 and 1400.3 precluded him from seeking unpaid fees from the plaintiff and, therefore, the defendant may not be compelled to pay such fees ( see Rosado v. Rosado, 100 A.D.3d 856, 955 N.Y.S.2d 119). Furthermore, the plaintiff's current attorney failed to comply with 22 NYCRR 202.16(k)(3), precluding an award of fees to him ( see Mimran v. Mimran, 83 A.D.3d 550, 922 N.Y.S.2d 27; Covington v. Covington, 249 A.D.2d 735, 673 N.Y.S.2d 746).