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Brockner v. Brockner

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 10, 2019
174 A.D.3d 567 (N.Y. App. Div. 2019)

Opinion

2018–06099 Index No. 20637/14

07-10-2019

Roxanne BROCKNER, Respondent, v. Steven BROCKNER, Appellant.

The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for appellant. Roxanne Brockner, Mount Sinai, NY, respondent pro se.


The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for appellant.

Roxanne Brockner, Mount Sinai, NY, respondent pro se.

ALAN D. SCHEINKMAN, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER ORDERED that the order is affirmed, with costs.

The parties were married on September 16, 1988. In October 2014, the plaintiff commenced this action for a divorce and ancillary relief. On October 13, 2017, the parties executed a stipulation of settlement, which, inter alia, expressly preserved each party's right to submit an application for attorney's fees to the Supreme Court.

Subsequently, the plaintiff moved for an award of attorney's fees in the sum of $35,000, contending, inter alia, that she was the less monied spouse, and that the defendant had engaged in dilatory tactics that unnecessarily prolonged the litigation. The defendant opposed the motion. In an order dated March 23, 2018, the Supreme Court granted the plaintiff's motion and awarded her attorney's fees in the sum of $35,000. The defendant appeals.

As a threshold matter, contrary to the defendant's contention, the submissions by the plaintiff and her attorney complied with the statutory requirement that an application for attorney's fees be supported by evidence, in admissible form, detailing the financial agreement between the party and the attorney, and attesting to the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements, or expenses (see Domestic Relations Law § 237[a] ; 22 NYCRR 202.16 [k]; see also CPLR 2106[a] ).

In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo , 165 A.D.3d 1304, 84 N.Y.S.3d 786 ; Patete v. Rodriguez , 109 A.D.3d 595, 599, 971 N.Y.S.2d 109 ). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner , 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409 ; Finnan v. Finnan , 95 A.D.3d 821, 943 N.Y.S.2d 559 ; Prichep v. Prichep , 52 A.D.3d 61, 64–65, 858 N.Y.S.2d 667 ).

In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo , 165 A.D.3d 1304, 84 N.Y.S.3d 786 ; Chesner v. Chesner , 95 A.D.3d 1252, 945 N.Y.S.2d 409 ; Prichep v. Prichep , 52 A.D.3d at 64–65, 858 N.Y.S.2d 667 ).

Here, the Supreme Court providently exercised its discretion in awarding the plaintiff attorney's fees in the sum of $35,000, taking into consideration the relative financial circumstances of the parties, the relative merit of their positions, and the fact that the defendant engaged in dilatory tactics, which unnecessarily prolonged the litigation (see Chesner v. Chesner , 95 A.D.3d at 1253, 945 N.Y.S.2d 409 ).

SCHEINKMAN, P.J., CHAMBERS, AUSTIN and DUFFY, JJ., concur.


Summaries of

Brockner v. Brockner

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 10, 2019
174 A.D.3d 567 (N.Y. App. Div. 2019)
Case details for

Brockner v. Brockner

Case Details

Full title:Roxanne Brockner, respondent, v. Steven Brockner, appellant.

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jul 10, 2019

Citations

174 A.D.3d 567 (N.Y. App. Div. 2019)
107 N.Y.S.3d 36
2019 N.Y. Slip Op. 5511