| Peritore v Peritore |
| 2008 NY Slip Op 03436 [50 AD3d 874] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Joseph Peritore, Respondent, v Petra Peritore,Appellant. |
—[*1] Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jeffrey R. Salant and Gregory A.Salant of counsel), for respondent.
In a matrimonial action in which the parties were divorced by a judgment dated January 21,2004, the defendant appeals from an order of the Supreme Court, Putnam County (Miller, J.),dated October 4, 2006, which granted her motion for an award of an attorney's fee only to extentof awarding her the sum of $7,500.
Ordered that the order is modified, on the facts and in the exercise of discretion, byincreasing the award of an attorney's fee from the sum of $7,500 to the sum of $35,000; as somodified, the order is affirmed, with costs to the defendant.
"The decision to award an attorney's fee lies, in the first instance, in the discretion of the trialcourt and then in the Appellate Division whose discretionary authority is as broad as that of thetrial court" (Burger v Holzberg, 290 AD2d 469, 471 [2002]; see DomesticRelations Law § 237 [a]). "The issue of counsel fees, although entrusted to the sounddiscretion of the trial court . . . is nonetheless controlled by the equities of the caseand the financial circumstances of the parties" (Lutz v Goldstone, 38 AD3d 720, 721 [2007] [internal quotationmarks and citation omitted]; see Wald vWald, 44 AD3d 848, 850 [2007]).
The Supreme Court improvidently exercised its discretion in awarding the wife, withoutexplanation, the sum of only $7,500 of the $55,631.40 in attorney's fees that remainedoutstanding.[*2]
It is undisputed that the wife never earned more than$23,000 per year during the relevant time period, while the husband earned more than $150,000per year. Considering the disparity in the incomes of the parties, and the modesty of thedefendant's equitable distribution award, the defendant should have been awarded the sum of$35,000 for reimbursement of her attorney's fees (see Domestic Relations Law §237 [a]; Burger v Holzberg, 290 AD2d 469 [2002]). That amount takes into account the$3,000 in attorney's fees already awarded to the defendant pursuant a prior order.
The parties' remaining contentions are without merit. Lifson, J.P., Florio, Eng and Chambers,JJ., concur.