| De Bartolo v De Bartolo |
| 2007 NY Slip Op 10092 [46 AD3d 739] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Louis De Bartolo, Appellant, v Nancy B. Yaghmour DeBartolo, Respondent. |
—[*1] Lawrence A. Salvato, New York, N.Y., for respondent.
In an action for a divorce and ancillary relief, the husband appeals from an order of theSupreme Court, Queens County (Lebowitz, J.), entered September 7, 2006, which denied hismotion pursuant to CPLR 5015 (a) to vacate an order of the same court dated December 8, 2005,granting the wife's application for an award of an attorney's fee in the sum of $19,570 upon hisdefault in opposing the wife's application.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, themotion is granted, the order dated December 8, 2005 is vacated, and the matter is remitted to theSupreme Court, Queens County, for a new determination on the issue of an award of anattorney's fee.
The motion to vacate the order awarding an attorney's fee to the wife, entered on thehusband's default, was brought in an action for a divorce and ancillary relief which has beenpending since 1999. After five years of litigation and an interlocutory appeal to this Court in June2005 the parties entered into a stipulation of settlement of outstanding issues and agreed that the"issues of counsel fees shall be submitted for determination based upon written applications tothe Court by 7/30/05."
Pursuant to a stipulation extending the parties' time to apply for counsel fees, the wifesubmitted her application for an attorney's fee on or about August 14, 2005. In her application,she claimed that she had paid her former attorney the sum of $7,770, and her appellate attorneythe sum [*2]of $3,000, and still owed that attorney the sum of$4,000 and her former attorney an unspecified amount. She provided no records of her allegedpayments or dates of her alleged payments. She submitted an affirmation from the formerattorney dated November 16, 2000, and no affirmation from her appellate attorney.
On August 30, 2005 the parties stipulated to extend the time for the husband to respond tothe wife's application until September 14, 2005. In an affidavit sworn to on August 31, 2005 thehusband claimed that the wife "failed to provide this Court with credible proof of her legal fees"on the ground that she failed to provide itemized bills from her former attorney or appellateattorney or other credible proof of payment. He noted that the wife had filed for bankruptcy in orabout 2003 and that her debts to her former attorney and her appellate attorney therefore mayhave been discharged. The husband claimed he could not afford to pay the wife's attorneys' feessince he still owed his own attorney the sum of $4,000 and paid the wife the sum of $12,000 peryear in child support.
According to the husband, this affidavit in opposition and other opposition papers were notserved or filed "due to the failure of a law office paralegal to properly diary the date for theopposition . . . to be served." Thereafter, that paralegal "left employment" with thehusband's attorney's law firm.
In an order dated December 8, 2005 the Supreme Court granted the wife's application for anattorney's fee in the amount of $19,570, holding that the husband "never submitted opposition tothe motion and is in default."
By order to show cause dated January 26, 2006 the husband moved to vacate the order datedDecember 8, 2005, entered upon his default in opposing the wife's application, based upon lawoffice failure, to wit, that a paralegal in the husband's attorney's law firm failed to properly diarythe date for submission of the opposition papers completed on August 31, 2005 and thereafterleft the firm's employ. In support of his motion to vacate the order dated December 8, 2005, thehusband submitted the opposition papers that had been completed and notarized on August 31,2005 and reiterated that "there is reason to believe that the wife discharged all of her debts to herprior attorneys when she filed for bankruptcy several years ago." In opposition to the motion, thewife's attorney stated that the plaintiff's claim of law office failure "strains credulity." The wife'sattorney did not address the merits of the husband's contentions or the alleged discharge inbankruptcy. In the order appealed from, the Supreme Court denied the husband's motion tovacate the order dated December 8, 2005, entered upon his default in opposing the wife'sapplication. We reverse.
The husband's claim of law office failure was detailed and corroborated by the fact that thehusband's opposition papers were completed and notarized on August 31, 2005. The failure of anemployee of the husband's attorney's law firm to serve and file papers which were timelyprepared constituted a reasonable excuse for his default (see Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630[2006]; see also Gironda v Katzen,19 AD3d 644, 645 [2005]). Further, the default was an isolated instance at theconclusion of a lengthy matrimonial action (see Montefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d673 [2007]; Rockland Tr. Mix, Inc.v Rockland Enters., Inc., 28 AD3d 630 [2006]).
Moreover, the husband's claim that the wife's debts to her former attorney and her appellateattorney were discharged in bankruptcy was not denied by her, and her proof was plainly [*3]insufficient. The affirmation from the wife's former attorney wasdated nearly five years prior to her application for counsel fees, and no affirmation whatsoeverwas submitted by her appellate attorney.
Accordingly, we reverse the order appealed from, and remit the matter to the Supreme Court,Queens County, for a new determination of the issue of an award of an attorney's fee. Santucci,J.P., Goldstein, Dillon and Angiolillo, JJ., concur.