| Dellafiora v Dellafiora |
| 2008 NY Slip Op 06796 [54 AD3d 715] |
| September 9, 2008 |
| Appellate Division, Second Department |
| John J. Dellafiora, Respondent, v Kathleen S. Dellafiora,Appellant. |
—[*1] Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (William J. Larkin, III ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment dated March 28,2005, the defendant former wife appeals, as limited by her brief, from so much of an order of theSupreme Court, Orange County (Alessandro, J.), dated October 10, 2007, as (a), in effect, deniedthat branch of her motion which was to direct that the marital real properties be immediatelylisted for sale, (b) denied that branch of her motion which was for an award of an attorney's fee,and (c) granted those branches of the cross motion of the plaintiff former husband which were todirect her to pay one-half of the mortgage payments, insurance premiums, and taxes associatedwith the marital properties, as well as reimbursement for one-half of the expenses paid by theplaintiff former husband since the inception of the action.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof, in effect, denying that branch of the defendant's motion which wasto direct that the marital real properties be immediately listed for sale and substituting therefor aprovision granting that branch of the motion, (2) by adding to the final paragraph thereof thefollowing words ", less an amount equal to one-half of any rents received from the marital realproperties since the inception of the underlying action," and (3) by adding a provision theretoawarding the defendant an attorney's fee in the sum of $10,000; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's cross motion which was to direct the defendant to pay one-half of the mortgagepayments, [*2]insurance premiums, and taxes associated with themarital real properties, as well as reimbursement for one-half of the expenses paid by the plaintiffsince the inception of the action (seeLoria v Loria, 46 AD3d 768, 770 [2007]; Chabbott v Chabbott, 306 AD2d 368,369 [2003]; Rubin v Rubin, 262 AD2d 390 [1999]). However, the court should havedirected that the amount due be offset by an amount equal to one-half of the rental incomereceived by the plaintiff from the marital real properties.
Under the circumstances, the Supreme Court improvidently exercised its discretion by, ineffect, denying that branch of the defendant's motion which was to direct that the marital realproperties be immediately listed for sale (see Dellafiora v Dellafiora, 38 AD3d 825, 826 [2007]; DomesticRelations Law § 236 [B] [5] [a]).
"The award of reasonable counsel fees is a matter within the sound discretion of the trialcourt. The issue of counsel fees is controlled by the equities and circumstances of each particularcase, and the court must consider the relative merits of the parties' positions and their respectivefinancial positions in determining whether an award is appropriate" (Morrissey vMorrissey, 259 AD2d 472, 473 [1999] [citations omitted]; see Domestic RelationsLaw § 237 [a]; Prichep vPrichep, 52 AD3d 61 [2008]; Miklos v Miklos, 21 AD3d 353 [2005]). The court may alsoconsider whether either party has engaged in conduct or taken positions resulting in a delay of theproceedings or unnecessary litigation (see Ciampa v Ciampa, 47 AD3d 745, 748 [2008]; Timpone v Timpone, 28 AD3d646, 646 [2006]; Morrissey v Morrissey, 259 AD2d at 473; Walker vWalker, 255 AD2d 375, 376 [1998]). Here, the Supreme Court improvidently exercised itsdiscretion in declining to award the defendant an attorney's fee.
The defendant's remaining contentions are without merit.
Motion by the appellant on an appeal from an order of the Supreme Court, Orange County,dated October 10, 2007, to strike portions of the respondent's brief on pages 11 through 13 and14 through 15 on the ground that they refer to matter dehors the record. Cross motion by therespondent to strike portions of the appellant's brief on the ground that they refer to matter dehorsthe record. By decision and order on motion of this Court dated May 6, 2008, the motion andcross motion were held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and cross motion, the papers filed inopposition thereto, and upon the argument of the appeal, it is
Ordered that the motion is granted and the following portions of the respondent's [*3]brief are deemed stricken and have not been considered on theappeal: the second full paragraph on page 11 beginning with "Defendant-appellant's claim"through the first four words on page 13, and the third sentence in the first full paragraph on page14 beginning with "At a conference before the trial Court" through the first paragraph on page 15ending with the words "events that have occurred in the trial Court"; and it is further,
Ordered that the cross motion is granted to the extent that the entire footnote on page 14 ofthe appellant's main brief is deemed stricken, that footnote has not been considered on the appeal,and the cross motion is otherwise denied. Fisher, J.P., Covello, Angiolillo and Balkin, JJ.,concur.