Opinion
August 10, 1981
In actions (1) to set aside a separation agreement and modify a divorce decree (Action No. 1), and (2) for specific performance of the separation agreement (Action No. 2), the cross appeals are from an order of the Supreme Court, Nassau County (Burke, J.), entered January 15, 1981, which awarded a counsel fee of $1,000 to plaintiffs in Action No. 1 and defendant in Action No. 2 for the defense of an appeal from a judgment of the same court, dated September 24, 1980. Order reversed, on the law, without costs or disbursements, and application for a counsel fee denied. There is no warrant for the award of a counsel fee in an action to set aside a separation agreement. (See Winant v. Winant, 83 A.D.2d 849. ) This applies to services rendered at the appellate level, as well as at nisi prius. Hopkins, J.P., Titone, Gibbons and Cohalan, JJ., concur.