Opinion
11601/2010
05-20-2016
V.P., PLAINTIFF, v. J.P., DEFENDANT.
Bruce Blatchly, Esq. via facsimile 845-255-2627 Randy Siper, Esq. via facsimile 845-457-1378
Bruce Blatchly, Esq. via facsimile 845-255-2627 Randy Siper, Esq. via facsimile 845-457-1378 Maria S. Vazquez-Doles, J.
The following papers numbered 1 - 18 read on Defendant/Wife's request for attorney fees(Seq. #4) and Plaintiff/Husband's request to restore the matter to the calendar(Seq. #5); Notice of Motion(seq. #4)/Affirmation of Bruce Blatchly, Esq., dated12/14/15/ Exhibits A - E 1 - 7 (Includes Updated statement of net worth) Notice of Motion(seq. #5)/Affirmation of Randy Siper, Esq., dated 12/21/15/ Exhibits A - D 8 - 13 Affirmation of Bruce Blatchly, Esq., dated 12/28/15/Exhibits A - C 14 - 17 Reply Affirmation of Randy Siper, Esq., dated 1/11/16 18
This contested action for divorce and ancillary relief was commenced on October 21, 2010 by the filing of a Summons with Notice. A request for judicial intervention was filed on February 17, 2011 and a conference was held before the Hon. John McGuirk on July 7, 2011. After several conferences the matter was stayed pending bankruptcy and not returned to the calendar until February 20, 2013. Thereafter, there were a series of adjournments for Defendant to obtain assigned counsel which was finally resolved by Decision and Order of the Hon. Alan D. Scheinkman, A.J. dated March 7, 2014. On June 26, 2014, the parties appeared before this Court, with counsel, for trial. Plaintiff was represented by counsel, Randy Siper, Esq., and Defendant was represented by Bruce D. Blatchly, Esq. In lieu of the trial, the parties entered into a settlement agreement. The broad outline of the agreement was placed on the record and the parties were sworn and acknowledged. Counsel requested time to reduce the terms to writing with a full opt-out agreement and the matter was adjourned to August 7, 2014. The Court never received the written agreement or the judgment of divorce paperwork with the transcript.
However, on July 9, 2014, the Court received Defendant's Motion for attorney fees in the amount of $5,000.00. This request was denied, with leave to renew, for failure to file an updated statement of net worth for the Defendant as required under 22 NYCRR §202.16(k)(3).
The agreement was never received by the Court and on August 26, 2015 the matter was marked off calendar pursuant to CPLR §3404. Without moving to restore this matter to the calendar, Defendant now moves, a second time, for attorney fees in the increased amount of $7,500.00. In response, Plaintiff first opposes the motion for fees and asserts that the matter has been marked off calendar and therefore an improper application at this time. Plaintiff then moves to restore the matter to the calendar to enable the parties to file the Judgment of Divorce. In reply, Defendant does not oppose Plaintiff's motion to restore. Attorney Fees:
See Order dated June 9, 2015 giving the parties a final opportunity to submit the agreement.
Defendant seeks counsel fees, as the less monied spouse, in the amount of $7,500.00. Counsel points out to the Court that he was assigned to Defendant as a poor person, pursuant to an Order of the Administrative Judge dated March 7, 2014, and has received no fee from the Defendant to date. Counsel submits invoices to the court totaling $5,796 for work already performed. Counsel seeks additional amounts in anticipation that further work must be done on the agreement and for the preparation of three Domestic Relation Orders(DRO). Plaintiff opposes this motion for counsel fees and argues that this motion can not be decided as it was filed after the Court marked the case off the calendar, and before any restoration.
Plaintiff is procedurally correct, and this Court can not consider the merits of Defendant's request. Once a matter is marked off calendar as abandoned, it must be restored before any further action is taken. (See CPLR §5015(a)(1) and Siegel's New York Practice 4th Edition §376 (2005)). Accordingly, it is hereby
ORDERED that Defendant's Motion for attorney fees is denied with leave to renew once the matter has been restored to the calendar. Plaintiff's Motion to Restore:
Plaintiff moves to restore this matter to the calendar for purposes of filing the judgment of divorce. Plaintiff alleges that attempts were made to reduce the settlement stipulation to a written agreement, but the parties were unable to accomplish that goal because of the disagreement on attorney fees. Plaintiff further alleges that there was no attempt to abandon the case and the failure to complete the action was inadvertent. Defendant does not oppose restoration.
As with any default, a motion to restore a matter to the calendar after it has been marked off pursuant to CPLR §3404, requires a party to "...make the requisite showing of facts sufficient to excuse his delay in prosecution and to establish that he has a meritorious cause of action." Renne v. Roven, 29 AD2d 866, (2nd Dept. 1968). Additionally, the court may also require that there is no prejudice to the Defendant. Sal Masonry Contractors, Inc. v. Arkay Const. Corp., 49 AD2d 808 (4th Dept 1975) and cited by Echevarria v. Bank, 111 AD2d 781 (2nd Dept. 1985). In this matrimonial matter, there is clearly a meritorious cause of action, and while the excuse for the delay is not sufficient under the facts of this case, the prejudice to both parties outweigh a denial of Plaintiff's motion at this time. This action was filed in 2010 and there is very little marital funds in this case. The parties would be unable to move on with their lives if this motion is not granted. Unless this Court uses its discretion to assist this case to conclusion, these parties will never see the divorce which they asked for many years ago. Accordingly, it is hereby
ORDERED that Plaintiff's motion to restore is granted and this matter is returned to the calendar for an appearance on May 31, 2016 at 9:30am at the 1841 Court House located at 101 Main Street, Goshen, NY. The parties may submit a fully executed stipulation of settlement prior to that date, in lieu of appearances, and an adjournment of 60 days will be given to provide the Judgment paperwork. However, should the parties fail to appear, or fail to provide a fully executed written stipulation, and this Court determines, after a hearing, that there has been dilatory delay, costs will be assessed on either or both parties, and/or their counsel, pursuant to the Rules of this Part.
The foregoing constitutes the Decision and Order of the Court.
Any matters not specifically addressed were considered and denied. Dated: May 20, 2016 Goshen, New York ENTER: _____________________________________ HON. MARIA S. VAZQUEZ-DOLES, J.S.C.